DIGITAL WEB INFO: LEGAL ASPECT

ACCESS

Digital Web Information or digital media can be said to be any media which is encoded in a machine-readable format. It can be created, viewed, modified and preserved on digital electronic devices. Computer programs and Software; digital imagery, digital video, video games, web pages and web sites including social media, data and databases, digital audio, e-books are examples of digital media or digital web information.[1] Internet being the one of the connecting channel is a vast mosaic of economic activity, which range from millions of daily online transactions and communications. New McKinsey research into the internet economies of the G-8 nations finds that web accounts for a significant and growing portion of global GDP. The Internet’s impact on global growth is rising rapidly. The Internet accounted for 21 percent of GDP growth over the last five years among the developed countries MGI studied, a sharp acceleration from the 10 percent contribution over 15 years. Most of the economic value created by the Internet falls outside of the technology sector, with 75 percent of the benefits captured by companies in more traditional industries. The Internet is also a catalyst for job creation. Among 4,800 small and medium-size enterprises surveyed, the Internet created 2.6 jobs for each lost to technology-related efficiencies.[2]

If we take the facts of India, then it is third largest nation in terms of internet users in the world, with highly social and mobile audience. This snapshot takes a closer look at India’s digital consumer, and the key trends driving the country towards a digital future. It’s estimated as many as 121 million Indians are logged onto the internet. It is a sizeable number, but still a relatively small proportion of the country’s 1.2 billion population.

POOR INTERNET CONNECTIVITY, BUT PHENOMENAL MOBILE GROWTH

The Telecom Regulatory Authority of India estimates that there will be an additional 200 million new mobile subscribers in the coming year. According to research aggregated by wearesocial.net, there are more than 898 million mobile subscribers in India, 292 million of these living in rural areas.[3]

The same data showed that 346 million Indian mobile users had subscribed to data packages, with more than half of all internet users in the country accessing the web via their mobile phone.
The increase in uptake of 3G and 2G services in India will also help get more people online. However, there are still issues getting this kind of connectivity into remote areas.

Other portable devices could also make an impact when it comes to Indians accessing the internet. The government plans to roll out its low-cost tablet device, known as Aakash, into schools nationwide in 2012. Costing around $50, it has been hailed as a huge innovation for India and the way the web can be accessed in schools.

The devices are still very basic, compared with other tablets on the market, and rely on good wi-fi connections and electricity supply, prerequisites which are not always available in more remote parts of India. In fact, one of the biggest challenges in the year ahead is increasing internet penetration in these areas. Only 2% of rural India has access to the web, according to the Internet and Mobile Association of India (IAMAI). That’s a small percentage when there is more than 70% of the population lives outside an urban conurbation.[4]

SOCIAL MEDIA ON THE RISE

Aside from access and reach, the other big change when it comes to India and the internet is how people are using the web. With better connections, mobile phones and computers, Indians are increasingly using the internet for more than just checking their email.[5]

In both rural and urban areas, social networking is a key driver of use. The most popular site in India is now Facebook, which in the past six months saw its user base grow by more than a third. Facebook has seen its market share grow by almost 50% from 2010 and 2011, while YouTube has shown a increasing growth rates in the first 4 months of 2012 and has been growing at over 400%. Twitter has yet to see a reasonable growth in India, despite having a fairly good adoption rates.

The professional networking site Linkedin is also seeing greater uptake in India. The country has the second largest number of users for the site, according to figures from socialbakers.com.
This net-savvy generation is also helping to build e-commerce in India. The number of transactions made online has been growing: in the past year, the value of online business in India was estimated to be worth about $10bn.

Some 13 billion adverts are already sent to mobile devices in India every month, and two thirds of all Indian e-commerce comes from mobile devices. The biggest change, when it comes to content, will be the provision of more non-English websites in a country where hundreds of languages are spoken. Websites such as Wikipedia are already trying to push regional language content.[6]

In a survey of more than 27000 adults across 26 countries found strong support for net access on both sides of digital divide.[7] It concluded that 79% of adults regard internet access as their fundamental right.[8]

Despite this enthusiasm there is also concern, with many web users cautious about speaking their minds online. The poll found that they were evenly split between those who felt that “the internet is a safe place to express my opinions” (48%) and those who did not feel this (49%). Japan was among the countries where most web users did not feel they could express their opinions safely online (65%), alongside South Korea (70%), France (69%), Germany (72%), and China (55%). In contrast, most Indians (70%), Ghanaians (74%), and Kenyans (73%) felt they could express their opinions safely. The poll also showed that most internet users feel that the internet should not be regulated by governments. More than half (53%) of internet users agreed that “the internet should never be regulated by any level of government anywhere”—including large majorities in South Korea (83%), Nigeria (77%), and Mexico (72%). Forty-four per cent admitted that they did not think they could cope without the internet. Many more felt this way in Japan (84%), Mexico (81%), and Russia (71%), while fewer felt they could not cope without the internet in Pakistan (19%), the Philippines (21%), Turkey (27%), Brazil, and India (both 29%).[9]

Based on this research, the UN Human Right Council passed its first resolution on “Free Speech on Internet”. The Resolution:

  • Affirms that the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights;
  • Recognizes the global and open nature of the Internet as a driving force in accelerating progress towards development in its various forms; … (20/L13… The Promotion, Protection and Enjoyment of Human Rights on the Internet.)

It urges all states, moreover, “to promote and facilitate access to the Internet and international cooperation” in developing “media and information and communications facilities in all countries” and to adopt “special procedures” to take such issues into account. (Id.) Finally, the Resolution indicates that the HRC will continue consideration of human rights “on the Internet and in other technologies, as well as of how the Internet can be an important tool for development and for exercising human rights.”

In the words of U.S. ambassador to the HRC Eileen Donahoe, “it’s the first ever U.N. resolution affirming that human rights in the digital realm must be protected and promoted to the same extent and with the same commitment as human rights in the physical world.”[10]

American Congressman Darrell Issa had proposed for a uniform legislation to govern internet rights and also proposed a bill for the same known as “Digital Bill of Rights”. In her words:

I believe that individuals possess certain fundamental rights. Government should exist to protect those rights against those who would violate them. That is the revolutionary principle at the heart of the American Declaration of Independence and U.S. Constitution. No one should trample our right to life, liberty and the pursuit of happiness. That’s why the Bill of Rights is an American citizen’s first line of defense against all forms of tyranny.

But where can a digital citizen turn for protection against the powerful? This question lay at the heart of the fight to stop SOPA and PIPA and keep the web open. While I do not have all the answers, the remarkable cooperation we witnessed in defense of an open Internet showed me three things. First, government is flying blind, interfering and regulating without understanding even the basics. Second, we have a rare opportunity to give government marching orders on how to treat the Internet, those who use it and the innovation it supports. And third, we must get to work immediately because our opponents are not giving up.

We need to frame a digital Bill of Rights. This is my first draft. I need your help to get this right, so I published it here in Madison for everyone to comment, criticize and collaborate. I look forward to hearing from you and continuing to work together to keep the web open.[11]

The main objectives of this bill will be for as follows:

  1. Freedom – Digital citizens have a right to a free, uncensored internet
  2. Openness – Digital citizens have a right to an open, unobstructed internet
  3. Equality – All Digital citizens are created equal on the internet
  4. Participation – Digital citizens have a right to peaceably participate where and how they choose on the internet.
  5. Creativity – Digital citizens have a right to create, grow and collaborate on the internet, and be held accountable for what they create.
  6. Sharing – Digital citizens have a right to freely share their ideas, lawful discoveries and opinions on the internet.
  7. Accessibility – Digital citizens have a right to access the internet equally, regardless of who they are or where they are.
  8. Association – Digital citizens have a right to freely associate on the internet.
  9. Privacy – Digital citizens have a right to privacy on the internet
  10. Property – Digital citizens have a right to benefit from what they create, and be secure in their intellectual property on the internet.[12]

AUTHORIZATION

The borderless nature of information flows over the Internet complicates online privacy, as individual’s data is subjected to different levels of protection depending on which jurisdiction it is residing in. Thus, for example an Indian using Gmail, will be subject to the laws of the United States. On one hand this could be seen as a positive, if one country has stronger privacy protections than another, but could also be damaging to privacy in the reverse situation – where one company has lower privacy standards and safeguards. In addition to the dilemma of different levels of protection being provided over data as it flows through different jurisdictions, access by law enforcement to data stored in a different jurisdiction, or data from one country accessible to law enforcement because it is being processed in their jurisdiction, are two other complications that arise.  These complications cannot be emphasized more than with the case of the NSA Leaks. Because Indian data was residing in US servers, the US government could access and use the data with no obligation to the individual.[13] In response to the NSA leaks, the government of India has stated that all facts need to be known before any action is taken, while citizens initially sought to hold the companies who disclosed the data to US security agencies such as Google, Facebook etc. accountable.[14]

Despite this, because the companies were acting within the legal limits of the United States where they were incorporated, they could not be held liable. In response to the dilemma, many actors in India, including government and industry are asking for the establishment of ‘domestic servers’. For example, Dr. Kamlesh Bajaj, CEO of Data Security Council of India was quoted in Forbes magazine promoting the establishment of India centric social media platforms.[15] Similarly, after the PRISM scandal became public, the National Security Advisor requested the Telecom Department to only route traffic data through Indian servers.[16] In these contexts, the internet is a driving force behind a growing privacy debate and awareness in India.

Currently, India’s most comprehensive legal provisions that speak to privacy on the internet can be found in the Information Technology Act (ITA) 2000.  The ITA contains a number of provisions that can, in some cases, safeguard online privacy, or in other cases, dilute online privacy. Provisions that clearly protect user privacy include: penalizing child pornography[17], penalizing, hacking and fraud[18] and defining data protection standards for body corporate.[19]

Provisions that serve to dilute user privacy speak to access by law enforcement to user’s personal information stored by body corporate[20] collection and monitoring of internet traffic data[21] and real time monitoring, interception, and decryption of online communications.[22] Additionally, legislative gaps in the ITA serve to weaken the privacy of online users. For example, the ITA does not address questions and circumstances like the evidentiary status of social media content in India, merging and sharing of data across databases, whether individuals can transmit images of their own “private areas” across the internet, if users have the right to be notified of the presence of cookies and do-not track options, the use of electronic personal identifiers across data bases, and if individuals have the right to request service providers to take down and delete their personal content.

Since 2010, there has been an increasing recognition by both the government and the public that India needs privacy legislation, specifically one that addresses the collection, processing, and use of personal data. The push for adequate data protection standards in India has come both from industry and industrial bodies like DSCI – who regard strong data protection standards as an integral part of business, and from the public, who has voiced increasing concerns that governmental projects, such as the UID, involved with collecting, processing, and using personal data are presently not adequately regulated and are collecting and processing data in such a way that abuses individual privacy.  As mentioned above, India’s most comprehensive data protection standards are found in the ITA and are known as  the Information Technology “Reasonable security practices and procedures and sensitive personal data or information” Rules 2011.[23]

The Rules seek to provide rights to the individual with regards to their information and obligate body corporate to take steps towards protecting the privacy of consumer’s information. Among other things, the Rules define “sensitive personal information’ and require  that any corporate body must publish an online privacy policy, provide individuals with the right to access and correct their information, obtain consent before disclosing sensitive personal information ‘ except in the case of law enforcement, provide individuals the ability to withdraw consent, establish a grievance officer, require companies to ensure equivalent levels of protection when transferring information, and put in place reasonable security practices. Though the Rules are the strongest form of data protection in India, they have not been recognized by the European Union as meeting the EU standards of “data secure”[24] and many gaps still exist. For example, the Rules apply only to:

  • Body corporate and not to the government
  • Electronically generated and transmitted information
  • A limited scope of sensitive personal information.
  • A body corporate when a contractual agreement is not already in place.

These gaps leave a number of bodies unregulated and types of information unprotected, and limits the scope of the Rules.  It is also unclear to what extent companies are adhering to these Rules, and if they are applying the Rules only to the use of their website or if they are also applying the Rules to their core business practices.

VALIDITY OF DIGITAL MEDIA AS DOCUMENTARY EVIDENCE.

Section 65 B of the Evidence Act deals with the admissibility of electronic records as evidence in the court of law. It provides notwithstanding anything in this act, any information contained in an electronic record which is printed on a paper, stored, copied in optical or magnetic media produced by the computer shall also be deemed to be a document, if the conditions mention in subsection (2) satisfied.

These conditions are: condition in respect of computer output shall be:

  • electronic record containing the information should have been produced by computer during the period over which the same was used regularly to store or process the information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of computer.
  • Information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activity.
  • During the material part of the said period, the computer was operating properly or; if not then in respect of any period in which it was not operating properly or was out of operation during that part of period, was not such as to affect the electronic record or the accuracy of its content.
  • The information contained in the electronic record reproduced or is derived from such information fed into the computer in the ordinary course of the said period.

Supreme court in its previous judgment in the case of State (NCT of Delhi) v Navjot Sandhu alias Afzal Guru[25]  held that irrespective of the compliance with the requirement of the section 65B, which has a special provision dealing with the admissibility of the electronic records there is no bar in adducing secondary evidence under section 63 and 65, of an electronic record. Section 63 merely provides that secondary evidence means and includes “copies made from the original by mechanical process which in themselves ensure the accuracy of the process and copies compared with such copies.” Following the principle of that “generalia specialibus non derogant”, which means special law will always prevail over general law, court in case of Anvar P.V. vs. P.K. Basheer & ors[26] has overruled the holding of Afzal Guru’s case and held inadmissibility of the CD’s as these electronic evidence produced without the compliance of the requirement of the section 65B. Here the special provision of the law is the section 65B of the Indian Evidence Act 1872.

The judgment in Anvar’s[27] case signifies the concern of our judiciary on reliability of the electronic evidences. The new approach set up by the court is that the general law relating to secondary evidence is not applicable in electronic evidence. Electronic records being more susceptible to tampering and alteration so if the electronic records, which is not complying with the special provision of the Indian evidence act that is section 65B, may led to the travesty of justice. After this case, for the presentation and admissibility of any electronic evidence like computer data, CD, VCD, chip any other digital record, there is mandatory necessity to comply with section 65B of the Act.

The said judgment would have serious implications in all the cases where the prosecution relies on the electronic data and particularly in the cases of anti-corruption where the reliance is being placed on the audio-video recordings which are being forwarded in the form of CD/DVD to the Court. In all such cases, where the CD/DVD are being forwarded without a certificate U/s 65B Evidence Act, such CD/DVD are not admissible in evidence and further expert opinion as to their genuineness cannot be looked into by the Court as evident from the Supreme Court Judgment. It was further observed that all these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic records sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

Hence, the admissibility of the secondary electronic evidence has to be adjudged within the parameters of Section 65B of Evidence Act and the proposition of the law settled in the recent judgment of the Apex Court and various other High Courts as discussed above. The proposition is clear and explicit that if the secondary electronic evidence is without a certificate u/s 65B of Evidence Act, it is not admissible and any opinion of the forensic expert and the deposition of the witness in the court of law cannot be looked into by the court. However, there are few gaps which are still unresolved as what would be the fate of the secondary electronic evidence seized from the accused wherein, the certificate u/s 65B of Evidence Act cannot be taken and the accused cannot be made witness against himself as it would be violative of the Article 19 of the Constitution of India.

Bibliography 

[1] http://www.businessdictionary.com/definition/digital-media.html - Last Accessed on 29th March 2016.

[2] http://www.mckinsey.com/industries/high-tech/our-insights/internet-matters - Last Accessed on 29th March 2016.

[3] http://www.digitalstrategyconsulting.com/india/2012/05/a_snapshot_of_digital_india_12.php - Last Accessed on 29th March 2016.

[4] http://www.digitalstrategyconsulting.com/india/2012/05/a_snapshot_of_digital_india_12.php - Last Accessed on 29th March 2016.

[5] Ibid.

[6] http://www.digitalstrategyconsulting.com/india/2012/05/a_snapshot_of_digital_india_12.php - Last Accessed on 29th March 2016.

[7] http://news.bbc.co.uk/2/hi/technology/8548190.stm - Last Accessed on 29th March 2016.

[8]  http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/08_03_10_BBC_internet_poll.pdf - Last Accessed on 29th March 2016.

[9] http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/08_03_10_BBC_internet_poll.pdf - Last Accessed on 29th March 2016.

[10]http://www.loc.gov/law/foreign-news/article/u-n-human-rights-council-first-resolution-on-internet-freespeech/ - Last Accessed on 29th march 2016.

[11]http://keepthewebopen.com/digital-bill-of-rights - Last Accessed on 29th March 2016. ; https://d3n8a8pro7vhmx.cloudfront.net/libdems/pages/8730/attachments/original/1428513286/Digital_Bill_of_Rights_Consultation_Paper_FINAL.pdf?1428513286  - Last Accessed on 29th March 2016.

[12] Ibid.

[13] http://www.bbc.co.uk/news/technology-24744695 - Last Accessed on 29th March 2016+

[14] http://www.thehindu.com/news/national/sc-to-hear-pil-on-us-surveillance-of-internet-data/article4829549.ece - Last Accessed on 29th March 2016.

[15] http://forbesindia.com/article/checkin/indias-internet-privacy-woes/35971/1 - Last Accessed on 29th March 2016.

[16] http://www.thehindubusinessline.com/industry-and-economy/info-tech/route-domestic-net-traffic-via-india-servers-nsa-tells-operators/article5022791.ece - Last Accessed on 29th March 2016.

[17] ITA section 67

[18] ITA section 43, 66, and 66F

[19] Information Technology (Reasonable security practices and procedures and Sensitive personal data or Information) Rules, 2011.

[20] Information Technology (Reasonable security practices and procedures and Sensitive personal data or information) Rules, 2011.  section 6(1)

[21] Information Technology (Procedure and Safeguards for monitoring and collection of Traffic Data or other information) Rules 2009

[22] Information Technology (Procedure and Safeguards for intercepting, monitoring, and decryption) Rules 2009

[23]http://www.thehindu.com/news/national/sc-to-hear-pil-on-us-surveillance-of-internetdata/article4829549.ece - Last Accessed on 29th March 2016.

[24] Business Standard. Data secure status for India is vital: Sharma on the FTA with EU. September 3rd 2013. Available at: http://www.business-standard.com/article/economy-policy/data-secure-status-for-india-is-vital-sharma-on-fta-with-eu-113090300889_1.html - Last Accessed on 29th March 2016.

[25] (2005) 11 SCC 600

[26] MANU/SC/0834/2014

[27] Ibid.

Submitter by- Vedanta Yadav

Legal Associate, Urbanus Lex

In case of any query feel free to consult with Lawtimes Journal
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 Team lawtimesjournal.in

One thought on “DIGITAL WEB INFO: LEGAL ASPECT

  • November 4, 2017 at 8:37 pm
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    very nice site.I love this site

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