Saturday, 1 July 2017

Shloka Suda

CYBER CRIME : A COMPLEX PROBLEM FOR TRADITIONAL LAWS

http://www.lawji.in/2017/06/cyber-crime-complex-problem-for.html

The term ‘cyber’ is derived from the term ‘cybernetics’ which means science of communication and control over machine and man.


The cyber world is a combination of various communication convergence technologies.Traditional laws are to be applied with a new vision , but even that’s not enough in the cyberspace.

Cyberspace has no specific jurisdiction, which means that criminals can commit crime from any corner of the world without leaving any evidence to control. It is very difficult to control cyber crime as it hardly leaves any evidence , the is a lack of adequate legislation to control them , there is no defined jurisdiction in cyberspace and the most major problem is that because of the lack in boundaries traditional laws which are restricted to their own jurisdiction can’t control it, lack of understanding and knowledge among the general public is another major problem.

After 11th September 2001 which marked the date for the USA attack on Pentagon and World Trade Centre raised the tention of Governments. Governments are responsible for the environment its citizens are put in and it’s the duty of the Government to provide the citizens with a good living environment. Traditional crimes are getting new shape and accelerated speed through the internet. New forms of traditional crimes is increasing day by day in the form of , Cyber fraud, Cyber theft, Cyber trespass, Cyber pornography and the like.

Cyber crime in India
In the direction the Model law, India enacted the Information Technology Act 2000 and rules 2000 which was amended in the years 2005 and 2006.

In a developing country like India , communication and Information Technologies are keystone for development and progress. As the internet has now become a necessity proving all other concepts inadequate in our dynamic society, some problems such as jurisdiction over internet regulation are yet to be solved.

Elements of cyber crime and criminal liability
The foremost elements of all crimes are mens rea and actus rea with certain exceptions e.g., incase of conspiracy only mens rea is enough for the imposition of criminal liability, incase of crime against state only the actus rea is sufficient for the imposition of criminal liability.

Pertaining to the general principle of the law of crimes it can be stated that no person shall be convicted of a crime unless it is proved beyond a reasonable doubt by the prosecution that his conduct is prohibited by the law of crimes and he is accounted for liability of the same and also his state of mind was defined in relation to the commission of crime. Actus reas not accompanied with mens rea is not a crime.

In addition to the general principle , there are 5 essential requirements for the imposition of criminal liability.
(1)Human conduct

(2)Circumstances
(3)Consequences of result
(4)Voluntariness
(5)Foresight.

The first 4 essential requirements represent actus reas while the fifth one represents mens rea. It can be said that imposing punishment when either of the elements is absent (except incase of exceptions), any imposition of punishment by the state would not be permissible and unjustified.

‘Mens rea’ isn’t used or defined in the Indian Penal Code 1860 however, IPC does define , dishonesty, fraudulently , etc.There must be a part of the cyber criminal’s foresight or mens rea to commit crime. For example , in the of hacking, hackers have sufficient knowledge or intention of unauthorised access and thereby the crime is commissioned.
Knowingly/intentionally represent mens rea in cyber crime and other conducts are actus reus.

Conclusion
In the era of globalisation and liberalisation, cyber crime must be recognised as a significantly new phenomena , which has a social , political and economic impact world wide. The global connectivity of the internet makes it possible for existing organised criminals to communicate between groups and within a group in order to support and develop networks for drugs trafficking, illegal arms trafficking, money laundering , smuggling , theft , fraud , pornography , terrorism and other cyber crimes.