Dr. Manoj Kumar Sharma Rajiv Gandhi National University of Law
Dr. Manoj Kumar Sharma Rajiv Gandhi National University of Law
Dr. Manoj Kumar Sharma Rajiv Gandhi National University of Law
9
Certificate signed by a person occupying
responsible official position stated to the
best of his knowledge and belief
Certificate must relate to
Identification of record, the manner in which it
was produced
Particulars of device
Navjot Kaur Sandhu v. NCT of Delhi, (2005) 11 SCC
600 Overruled in
Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473
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The applicability of procedural requirement under Section
65B(4) of the Evidence Act of furnishing certificate is to be
applied only when such electronic evidence is produced by
a person who is in a position to produce such certificate
being in control of the said device and not of the opposite
party. In a case where electronic evidence is produced by a
party who was not in possession of a device, applicability
of Sections 63 and 65 of the Evidence Act could not be held
to be excluded. In such case, procedure under the said
Sections can certainly be invoked.
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If this was not so permitted, it will be denial of
justice to the person who was in possession of
authentic evidence/witness but on account of
manner of proving, such document is kept out of
consideration by the court in absence of certificate
under Section 65B(4) of the Evidence Act, which
party producing could not possibly secure. Thus,
requirement of certificate Under Section 65B(4) is
not always mandatory. Such party could not be
required to produce certificate under Section 65B(4)
of the Evidence Act. The applicability of
requirement of certificate being procedural could
be relaxed by the Court wherever interest of justice
so justifies
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Corporate Responsibility For Data Protection
-43A
If corporate is possessing, dealing or handling any
sensitive personal data or information in a
computer resource which it owns, controls or
operates
If negligent in implementing and maintaining
reasonable security procedures
Wrongful loss or wrongful gain
Liability to pay compensation
Ifany person or intermediary had access to
material containing personal information
Disclosure of data
For wrongful gain or loss
Without consent
Imprisonment upto 3 years or fine upto 5 lacs
or both
Sensitive Personal Data
Password
financial information such as Bank account or
credit card or debit card or other payment
instrument details
physical, physiological and mental health
condition
sexual orientation
medical records and history
Biometric information
To disclose privacy policy
Not to be published
Consent to be obtained
Not to be used for purpose other than for which
obtained
To keep the information secure
Justice Srikrishna Committee – Personal Data
Protection Bill 2018
GDPR, Europe
Right to Privacy and Data Protection after the
Historic 9 Judge Bench Decision in K. Putaswamy
v Union of India, 2017
Aadhar Act – Supreme Court Verdict of 2018
In 2014 and 2015, the Facebook platform
allowed an app … that ended up harvesting
87m profiles of users around the world that
was then used by Cambridge Analytica in the
2016 presidential campaign and in the
referendum
Fined GBP 500000
Section2(w) - "intermediary", with respect to
any particular electronic records, means any
person who on behalf of another person
receives, stores or transmits that record or
provides any service with respect to that
record and includes telecom service
providers, network service providers,
internet service providers, web-hosting
service providers, search engines, online
payment sites, online-auction sites, online-
market places and cyber cafes.
Exemption from liability – no liability for any
third party information, data,
communication link made available or hosted
Due diligence
Liability of Intermediary
if aided the act or conspired
Upon receiving actual knowledge that data is
used to commit unlawful act, fails to take
immediate action
Duty of Due Diligence
The intermediary shall publish the rules and
regulations, privacy policy and user agreement
for access-or usage of the intermediary's
computer resource by any person
The intermediary, on whose computer system
the information is stored or hosted or published,
upon obtaining knowledge by itself or been
brought to actual knowledge hall act within
thirty six hours
The intermediary shall not knowingly host or
publish any information
He shall inform the users of computer resource not to
host, display, upload, modify, publish, transmit,
update or share any information that —
is grossly harmful, harassing, blasphemous defamatory,
obscene, pornographic, paedophilic, libellous, invasive
of another's privacy, hateful, or racially, ethnically
objectionable, disparaging, relating or encouraging
money laundering or gambling, or otherwise unlawful in
any manner whatever;
harm minors in any way;
infringes any patent, trademark, copyright or other
proprietary rights;
violates any law for the time being in force;
deceives or misleads the addressee about the origin of
such messages or communicates any information which is
grossly offensive or menacing in nature;
impersonate another person;
Pre-Censorship
Episode of 2011 Google, Facebook, Yahoo and
Microsoft
The Journalist Episode, 2011
Liabilityto Proactively identifying and
removing or disabling public access to
unlawful information or content
Fake News - Liability of intermediaries to
ensure traceability of the originator of
content shared on their platform
Monitoring and Tracking
RFID, CCTV, Facial Recognition, Tracking cookies,
market behaviour etc
Dissemination and Publication
Air Hostess of Kingfisher Orkut case, 2007
Manoj Kumar Pandey v. State of U.P. 2011
Aggregation and Analysis
Section 79 is valid subject to Section
79(3)(b) being read down to mean that an
intermediary upon receiving actual
knowledge from a court order or on being
notified by the appropriate government or
its agency that unlawful acts relatable
to Article 19(2) are going to be committed
then fails to expeditiously remove or
disable access to such material.
Christian Louboutin - manufacturer of luxury
shoes
Defendants operate a website by the name
www.darveys.com
Defendants claimed that they are not selling
the goods but they merely enable booking of
orders through their online platform
E-commerce platforms and their liability as
intermediaries......???
Section79 of the IT Act is to protect genuine
intermediaries, it cannot be abused by
extending such protection to those persons
who are not intermediaries and are active
participants in the unlawful act. Moreover, if
the sellers themselves are located on foreign
shores and the trade mark owner cannot
exercise any remedy against the said seller
who is selling counterfeits on the e-
commerce platform, then the trade mark
owner cannot be left remediless.
Spoofing
Phishing
Hacking
VirusDissemination
Cyber Forgery
Credit Card Frauds
Cyber Vendalism
Cyber Terrorism
Cyber Defamation
Cyber Pornography
Sale of Illegal products
Financial crimes
Online Gambling
Cyber Stalking
IPR Crimes
Tampering with computer Imprisonment upto 3 years or
source documents – fine upto 2 lacs or both
Concealing, destroying,
altering computer
programmes, system or
network - S. 65
• Illegal Access to Computers • Compensation
•Downloading, copying data • Imprisonment upto 3 years or
•Virus Attack fine upto 2 lacs or both
•Computer Vandalism • Poona Auto Ancillaries Pvt.
•Denial of Access to computer Ltd. v. PNB, 2013 – Fine of 45
•Providing help in getting Lakhs to PNB
illegal access
•Stealing, concealing
information
Sending information that is grossly offensive
or had menacing character
Sending false information for causing
hatred, annoyance, danger, injury, insult etc
Emails for deceiving or misleading
Imprisonment upto 3 years and fine
Section Declared Unconstitutional in
Shreya Singhal v. Union of India, AIR 2015
SC 1523
Dishonestly receiving stolen Imprisonment upto 3 years or fine
computer resource or upto 1 lacs or both
Communication Device
Identity Theft – using electronic Imprisonment upto 3 years AND fine
signatures, password etc upto 1 lacs or both