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The long wait is over. What was triggered off as a knee jerk reaction to Bazee CEO Avnish Bajaj's arrest in a Delhi school MMS sale case, culminated in the IT Act 2000 review committee coming out with the document that aims at improving the e-commerce environment in the country.

The amendments reveal a fundamental shift in the approach to address the liability issue of the network service providers, while certain sections of the IT Act have been deleted.

One of the most significant deletions is of Section 66 of the Information Technology Act 2000. The Section defined the offence of hacking, which was made punishable with three years imprisonment and a Rs 2 lakh fine. It was drafted in very broad and generic terms. The review committee has instead suggested a new section that contains specific instances of computer related offences.

The first important thing to note is that now the specific offence of hacking is under proposal to be deleted. What specifically is the rationale of this exercise is clearly not known or understood. Importantly, the stringent requirements of proving the commission of the acts in question "dishonestly or fraudulently" by the accused person, as proposed by the amendments, is a very high onus of proof which invariably cannot be discharged by the prosecution in the context of cybercrimes. Further, it would result in denying effective justice and relief to the normal netizen who would not have access to the digital records, logs and other electronic documentation that would be in the power, possession and control of the intermediaries.

The proposed Section 66 only talks of eight different kinds of computer related offences, which are nothing but a cut and paste job of the eight grounds which have been detailed under Section 43 of the IT Act, 2000 for claiming damages by way of compensation of up to Rs 1 crore. The proposed amendments have thrown the utility of the general language out of the window. It would be far more prudent to adopt the general and specific language approach.

The Fundamental Shift
The proposed amendment has made sure that it takes care of the issue that triggered off the review in the first place and made network service providers less liable for third party data or information made available by them under Section 79 of the Information Technology Act, 2000.

According to the existing Act, the service providers are liable in all circumstances barring two-one, if they are able to either prove that they have no knowledge of the contravention of the law, and two, that despite exercise of all due diligence they could not prevent the commission of any offence under the law.

However, the proposed amendment has done away with the requirements of network service providers. They have instead provided for exemption from liability of intermediaries in certain cases.

They have defined intermediaries in the widest possible terms to include telecom service providers, network service providers, Internet service providers, web-hosting service providers, search engines, including on-line auction sites, online-market places, and Cyber Cafes. The new language of the proposed amendments states that an "Intermediary" shall not be liable under any law, for any third party information, data, or link made available by him, except when the intermediary has conspired or abetted in the commission of the unlawful act. This is a dramatic shift, as under existing law the onus of proof is upon the intermediary. The network service provider, under existing law, is presumed to be guilty unless he can prove himself innocent.

Another problem with the language of the proposed amendments is that it has completely done away with the requirement for due diligence by the intermediaries, including network service providers. This is likely to give a license to be free from liability for all intermediaries in India. Such an approach would not only be legally imprudent but would also have a negative impact on the further growth of e-commerce in India, where the ground realities are completely different from those existing in the West. Also, a lot of times, the intermediaries deliberately or unintentionally delete electronic logs and other records. In such a case one would not be able to prove that the intermediary has "conspired or abetted" in the commission of the unlawful act. This is likely to give a blanket license to intermediaries and would not be conducive to the overall growth of e-commerce in the country.

The proposed Section 79 is going to empower the intermediaries to such an extent that almost everybody would want to come within the ambit of "intermediaries" so as to limit their liability for any third party information, data, or link made available by them.

I believe that the approach of the proposed amendments is neither legally prudent nor practical given the peculiar and customized requirements of the Indian subcontinent and the growth of e-commerce in India. There is an urgent need to re-examine the import and long term consequences of the proposed amendments before the same are pushed ahead in the process of legislation.

Pavan Duggal, Advocate, Supreme Court of India-The author is a cyberlawexpert and Advocate, Supreme Court of India. He can be contacted at pduggal@vsnl.com, pavanduggal@hotmail.com Page(s):    1    2