- Krishna Vasani
In the past years of the pandemic, technology has been a key in bringing in the physical space into a virtual reality. Technology has literally been an element in every sector known, be it schooling or virtual courtrooms, the two things we never thought would be a thing. Information technology has benefitted with connecting people across the world and being a mode for answering anything and everything, but the coin has its other side too, the technology has led to online crimes, and crimes are practically, not confined to the physical space anymore. We see a crime happening on social media, where people are bullied or where people have received messages stating fake schemes and have managed to escape, the courtesy – of technology![1]
India has an Information Technology Act, 2000 (hereinafter referred to as ‘IT Act’) it is the only act that serves the purpose of governing e-commerce social media, and other cyber- related platforms. With the advent of new technology-related advancements, it has become imperative to update the laws related to the same. More than two decades before, the IT Act had come into the picture with an intent to address the issues relating to the media under the legislature and define those crimes, and put across some sorts of punishment attached to it. But in those two decades, we have witnessed nothing less than a fast-paced technological advance where every day we hear something new and to bring everything on one plate and radar is a tough task for the legislature as well. The legislature will, however, have to address the complications relating to the right to privacy, data protection, and new crimes that have come into the picture.
There have been unprecedented incidents in recent times that highlight the need for the legislature to look into the decision of restructuring the old Act. The Pegasus Software attack was one of the highlights which stated how the Artificial Intelligence-related cyber-attacks escaped the legal provisions. The IT Act and the Indian Penal Code provide for tampering the computer source code[2] and the confiscation of the computer source[3], which have further left a lacuna for the data breaches and data leaks. This tampers with the Right to Privacy, which is now a Fundamental Right enshrined in Part III of the Constitution of India, also, reiterated in the famous Supreme Court judgment of K S Puttuswamy v. Union of India.[4]
Freedom of speech is one of the most articulated fundamental rights and in a democratic setup, the citizens expect a definitive regulatory framework on the same. The IT Act shows some hints of vagueness with respect to freedom of speech, it gives power to the authorities to intercept the data or trace down the originator for some reasonable cause or for the satisfaction of the controller,[5] is threatening to the fundamental right of the people and makes them feels as they are being watched over every time they say/write something.
Section 79 of the IT Act provides for a safety net for the Social Media Intermediaries where they can prove their non-interference in third party communication and show that the communication was from point A to point B and the intermediary is not liable for any legal prosecution. However, the intermediary loses this safety provision when they fail to conduct due diligence or remove unlawful content from their platform. This vagueness as to what confines within the ambit of removal has led to several social media accounts being banned and has created a havoc as to the democracy being threatened.
Data leaks and data breaches have become a part of our daily lives. There have been so many instances of us coming across the notification stating ‘your password appeared in a data leak’ or ‘your user id has been compromised’. This indicates the number of data breaches or leaks that take place and how with advancement, the instances of data breaches are going up. The IT Act has failed to address this issue, though there are provisions related to compensation being provided for negligence over handling personal sensitive data but nowhere mentions the big data leaks or breaches.
Hence, looking over the abovementioned instances of lacunas that exists in the current legislative material that is in place and needs to be updated and a brand-new act needs to be brought in. What needs to be comprehended is that when the IT Act was brought into place in the year 2000, there were a handful number of people out of the total population who actually had an access to the internet. And now, nearly every person in the country uses the internet as a part of their day-to-day lives. The laws that will be brought in as a replacement for the old IT Act need a reflection on how many people are going to be affected by the law and in what manner.
Speaking of the number of people to be affected by the provisions, proactive measures need to be ensured with regard to the data breaches and data leaks. Laws need to be brought in place to ensure that definition of the above-mentioned, penalties and liabilities needs to be mentioned. The Act needs committees to be introduced to safeguard the interest of the people and the committees could act as a grievance platform for the people to address their issues and also, for reporting the crimes that are taking place at a community level, and then directives could be given to the appropriate platforms to look into those matters at an early stage. Basically, to state it in a lone, a fast redressal mechanism is the need of the hour.[6]
Technology has always been the brainchild of human intelligence. Laws need to be in place that this artificial intelligence, created for the benefit of humans, doesn’t act against the human race and crimes do not take place over the virtual medium. Besides all the stated reasons, Junior Minister for Electronics and IT, Rajeev Chandrashekhar at the 30th edition of the NASSCOM Technology and Leadership, stated that India needs a new internet law. He further stated that a new law was necessary for keeping up with the flexibility and evolutionary changes in the fast-paced times.[7]
Therefore, it is imperative that we command over technology before technology starts commanding over us and becomes unstoppable.
Krishna Vasani is fourth year student at Pravin Gandhi College of Law, Mumbai.
[1] Nikhil Naren, Two decades of Information Technology Act, 2000: Way Forward.
[2] Indian Penal Code, 1860, Section 65 & 66, No. 45, Acts of Parliament, 1860 (India).
[3] Information Technology Act, 2000, Section 76, No. 21, Acts of Parliament, 2000 (India).
[4] (2019) 1 SCC 1
[5] Information Technology Act, 2000, Section 7 & 29, No. 21, Acts of Parliament, 2000 (India).
[6] Deepika Srinivasa, Update the IT Act 2000: India needs a reboot!, (July 12, 2021).
[7]IT Act 20 years old, need new digital law: Rajeev Chandrasekhar, Times of India.
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