With the Internet becoming available at the touch of a button and wannabe computer whiz kids dabbling in hacking for sport, cyber crime has seen an unprecedented upsurge. What makes it infinitely more dangerous than any other crime is the comparative lack of awareness and identification. How could you be expected to know that behind the innocent looking website lurks a compulsive hacker, or worse, consummate identity thief?
In India, the law on commission of cyber crimes is highly restricted. The Information Technology Act, 2000 is the extent of all there is with respect to cyber law in India. Generally, cyber complaints may be filed for hacking, phishing, identity theft, child pornography, piracy, cyber stalking, credit card fraud and the like.
Cyber crime complaints, when taken in a more liberal sense, are commonly accepted to mean any crime committed with the use of or against a computer or a group of computers. And that, right there, is where the Information Technology Act, 2000, starts to look like a damsel in distress. With the initiation into the marvelous world of smart phones and tablets becoming a rite of passage of sorts for adolescents, restricting cyber crimes to only denote crimes committed with the help of computers is utter ignorance. Again, another one of the many the gaping lacunae the Information Technology Act, 2000 suffers from is that it makes a number of the offences, such as hacking, violation of privacy and tampering with computer source documents, bailable, which puts a big question mark upon its effectiveness.
Cyber Crime Complaints and the modus operandi of the Cyber Crime Cells
A complaint for the commission of a cyber crime may be filed with the in-charge of the cyber crime cells which is present in a number of cities. Even if such a cell is not present in your city, you may file a complaint with the nearest cyber crime cell, provided you brave the dilly-dallying over jurisdiction, which is the hallmark of the Indian Police.
To file a complaint regarding the commission of a cyber crime, it is absolutely imperative that you have certain documents like the server logs, the receipt (if any, and if there is none, that should probably have been your first clue) or any other communication that you may have received from the website, along with a list of the people you suspect may have been involved with the commission of the crime. Alternatively, you could also shoot the cell an email at their respective email addresses. Although the Information Technology Act, 2000 does not expressly provide for a set procedure for the filing of a cyber complaint, the websites of a majority of the cyber crime cells in the country have provisions for the registering of such e-FIR.
The registration of cyber complaint on the website of the cyber cells itself counts as an FIR. Therefore, it is not required that another one be lodged again. After the filing of an FIR for a cyber crime, the police are required to do the usual investigation (or the lack of it) and present the case before a Magistrate. However, one must regularly follow up with the police officer or the Station concerned so as to ensure that their complaint is actually taken seriously.
Consumer Protection Act, 1986: Knight in Shining Armour?
In case a consumer wishes to evade the apathy of the Indian Police, there is another way out. Enter Consumer Courts. Complaints for issues that are related to e-commerce may also be filed under the Consumer Protection Act, 1986. The procedure is obviously similar to that which would be followed in case of a regular Consumer Complaint before the District Courts.
The major edge that the Consumer Protection Act, 1986 has over the Information Technology Act, 2000 is that it deals with the economic loss suffered by the victim and compensates him/her accordingly. Also, one does not need a lawyer to defend oneself in front of the District Forum, which again makes the Consumer fora the weapon of choice for consumers against cyber crimes.
The proverbial can of worms that is E-Commerce
In an age where the Wikipedia is the ultimate authority for anything and everything, the demand for e-commerce portals and the resulting complaints for online fraud should hardly be a shock. According to Ankur Singla, CEO, Akosha, out of the 11980 complaints received by Akosha for e-commerce in the first quarter of 2013, almost 58 percent related to deficiency in delivery (such as delivery of damaged goods, delivery of a different product or non-delivery of goods, even after the payment has been made), 29 percent were for refund of money for non-satisfactory products, while the rest had different concerns.
The Internet is rife with companies looking to make quick money and the reluctance on the part of the customers to step outside the comfort of their homes for shopping (blame it on the sweltering mess of a weather that is the Indian summer) acts as encouragement to completely phony enterprises to set up their own versions of online shopping. Timtara, the brainchild of Arindam Bose, who was recently arrested on charges of Internet fraud of over twelve lakh rupees, is a perfect example. One would think that with the stringent requirements for starting a lawful e-commerce venture would act as a discouragement, but even so, cyber crime continues to increase at an astonishing rate.
The Consumer Protection Act, 1986, only covers that spectrum of cyber crimes, which result in economic losses to the Complainant or in cases where there is ‘deficiency in services’ or ‘defect in goods’ or ‘unfair trade practices’ have been employed by the trader/seller or where goods and services that are not genuine (spurious goods and services) are marketed as such. In the event that any of this is done with the help of a computer or a laptop, it would come under the definition of a cyber crime. More often than not, cases that fall within the ambit of the Consumer Courts involve some sort of pecuniary loss to the Complainant, which is required to be made good by the Opposite Party. The Courts do not concern themselves with the mode of commission of the crime, but only with the final outcome vis-a-vis the customer, therefore providing a more effective structure for consumer protection.
Shortcomings under the Consumer Protection Act, 1986
One of the few roadblocks the 1986 legislation suffers from, on the way to providing justice, is that the consumer generally is required to file the complaint where the company has its registered office or branch office or service centre or even marketing office. For many of the customers, such a procedure is not practically feasible if they live in separate states or even different cities. Though such a complaint may also be filed at the place where the ‘cause of action’ arises, in case of e-commerce transactions, it makes for a very difficult thing to justify in Court.
The Act is also defenseless against companies that have ceased to exist or that have been shut down, unless and until the whereabouts of their erstwhile owners may be found. If an online enterprise vanishes into thin air after the consumer has suffered his loss, the latter will be required to bear the loss so suffered. In such a case, he has no remedy but to take the matter up with the local police or the cyber crime cell.
Desperate times, stringent measures
In view of the recent scams that have taken place online, in the form of fake online retailers, travel companies, etc., it is high time that the government takes cognizance of the fact that cyber crime is here to stay and provide for efficient measures to curb the same. Where the perpetrators of crime are a step ahead of the law enforcement agencies, the consumer will always be at the receiving end. Judges or Court officials must be provided special training to deal with technology related matters, so as to better their understanding of the cases they deal with. Since traditional litigation is apparently insufficient to combat high tech crime, there is all the more need for bringing in newer approaches through Electronic Courts (E-Courts) and Online Dispute Resolution (ODR). These are already in vogue abroad and need to be incorporated into the Indian system to prevent E-Commerce experiences from turning into nightmares for the customer.
- Vasudha Misra, IInd Year, RMLNLU
Picture from here.