Cyber Crime in India: Features, cause, and Elements of Cyber Crime

Author: Neha Sindhu

Introduction

Crime is not a new concept to all of us. Since the time humans have existed, crime has also existed. They go like hand in hand. Nature of crime has changed over the passing of years and so have the society and the people. With the changing of time, new technologies have been introduced to the people. And with the new technologies, new crime has started to occur using these technologies. Such crime is called Cyber Crime. According to ancient texts, crime is an act done by a person against another person. But the definition changes in the context of Cyber Crime. This is such an act that can be done against any individual by any individual or firm or organisation and can be done even against an organisation. Cyberspace is a virtual platform where people can collect information; communicate with one another etc, without any limitations.

Meaning and Concept of Cyber Crime

The word Cyber Crime consists of two words: “Cyber” which donates virtual space and “Crime” which donates as an act which is an offence against the society. So, it can be very well said the cyber crime is a crime done in the virtual world. Cyber Crime has no limitation and it is not bound only to a particular country. It can be across the world, from anywhere and at anytime.

In 1820, first cybercrime was reported in France. In that case an act of sabotage was committed by the employees of a textile industry. The first identified cybercrimes were related to computer intrusions and fraud. But with the passing of time, the computer crimes also became advanced and in today’s time there is a rapid increase in the cybercrime which is hard to trace, at times.

Characteristics of Cybercrime

• Specialized Knowledge: To commit a cybercrime a person needs to be having a good knowledge about the computers and internet. Many a times cybercrime is committed by the very educated people as they have the accurate knowledge about the same. And t times it becomes very hard to trace them.
• Collection of evidence: Collecting evidence in a cybercrime is very difficult as the crime committed is in the virtual world.
• Geographical Challenges: Since the crime can be done globally without being physically present at the place. The distance does not matter in cybercrimes. A person sitting in Indian can target a person sitting in Australia.

Classification of Cybercrimes:

1. Crime against an individual: Crime against individual can be done by –
2. Gaining access to any computer or network without the permission of the owner
3. Stalking someone causing them threat is also a cybercrime
4. Indecent representation of any picture, or pornography, which destroy the minds of youngsters
5. Harassing someone by sending constant texts and messages to an individual
6. Taking over the pass codes of another person without his/her knowledge. The person doing such an act has a guilty mind.
7. Crime against individual property:
8. Cyber Vandalism is one of the most occurred crimes against an individual property.
9. Intellectual Property Rights also comes under the crime against an individual property. In some cases the person becomes deprived of his own rights due to this.
10. Hacking someone’s site or data
11. Getting access to someone’s ISP ID and password, without the knowledge of the owner. This also comes under a part of hacking.
12. Crimes against Government or Organisations:
13. Password Sniffing: This is an attack stealing the username and password from the network.
14. Terrorism attack which may result as a harm to a country
15. Shutting down any network or machine to restrict a person from access to it.
16. Damage or destruction in digital form
17. Possession over any kind of unauthorized information
18. Crime against society:
19. Distribution of obsolete material
20. Online gambling
21. Selling of products without permission
22. Human trafficking, drugs trafficking or of any weapons. All this is illegal.
23. Offences like money laundering, corruption etc.
24. Threatening posts against any community or death threats or rape threats.

Causes of Cyber Crimes-

There are many causes of cybercrime:

• The computers have a high capacity of storing data in a little space. This helps the person to store a large amount of data at once and get access to more information at once.
• Easy Access: Though most of the apps now use high security passwords but at times some or the code gets missed by the people and hackers take advantage of that code and get access to the apps or id’s or data easily.
• Negligence on the part of the person gives advantage to the cybercriminals to get illegal access to the system.
• Collection of evidence is one of the difficult tasks to do in cases of cybercrime and this gives the criminals advantage to commit more and more crimes without leaving any trace of the act. 
• Cyber crime does not have any demographical restrictions. This makes the criminal more confident to commit the crime. If a person sitting in India attacks a crime to any person sitting in UK, then it becomes difficult for the agencies to track the person since there is no recognised code of law for international cyber crimes.
• The youngsters these days do not have proper knowledge about the cyberspace and cybercrimes. This lack of knowledge leads them towards committing such acts whose legal obligations they do not know about.

How to prevent Cyber Crime?

Certain precautions need to be taken by the users to not get themselves into any cybercrime:

• The person should two-factor authentication. This stops any other person to get access to the accounts.
• Keep the data virus protected always.
• It is advised to keep the software of the devices up to date. This renders the person from getting access to the device.
• Password of all the apps should be different and should be changed timely.
• Always keep your personal information to yourself. The more you keep it to yourself the more safe you are.
• Children should be taught about the good use of children and proper knowledge should be given to them.

Fundamental elements of Cyber Crime

Actus Reus and Mens Rea are the two most important element of a crime that is needed to be proved to prove someone guilty of a crime. Actus Reus of cybercrime is very dynamic and varied. In cybercrime it is very difficult to prove Actus Reus. It cannot be proved unless the absence of consent or permission is proven. Whereas, in the case of cybercrime, Mens Rea consists of two main elements, firstly, there must be an intend to get the data from a certain device; secondly, the knowledge of actus reus should be there when committing the crime.

Cyber Crime has no definition in the Information Act, 2000 even after amendments made in 2008. But different definitions have been given to cybercrime:

• US Department of Justice (1989): Those crimes where the knowledge of a computer system is essential to commit a crime as know as Cybercrimes.
• Oxford Dictionary: Criminal activities carried out by the means of computers or the internet is known as Cybercrimes.
• The Council of Europe Convention on cybercrime (2001): A wide range of malicious activities, including the illegal interception of data, system interferences that comprise the network integrity and availability and copyrights infringements is known as Cybercrime. 

According to this convention cybercrime has five conventions:

1. Offences associated with computers
2. Offenses related to contents
3. Offences against the availability, integrity and confidentiality of computer data and systems
4. Offences related to infringement of copyrights; and
5. Abating and aiding of such offences

International Convention on Cyber Crimes:

The Council of Europe’s Cybercrime Convention was opened in 2001 and came into force in 2004. It is the only legal international multilateral treaty on Cybercrime. This convention is also known as Budapest Convention on Cybercrime.

Features of the Convention:

• It facilitates the detention, investigation and prosecution of cyber crimes committed.
• It is implemented by an additional protocol adopted in 2003. It made the online publication of racist propaganda a punishable offence.
• The convention works on three dimension:
• Certain conducts are criminalised
• States are provided with some procedural tools which need to be followed.
• The state is obligated to cooperate for mutual investigation.

Offences criminalised under the Convention:

• Illegal Access- Article 2
• Illegal interception- Article 3
• Data Interference- Article 4
• System Interference- Article 5
• Misuse of Devices- Article 6
• Computer-related Forgery- Article 7
• Computer related fraud- Article 8
• Offences related to child pornography- Article 9
• Offences related to infringements of copyrights and related rights- Article 10
• Attempt and aiding or Abating- Article 11

India did not participated in the drafting of the treaty and was concerned about the sharing of data with foreign law enforcement agencies as it is matter of infringement of national sovereignty and the mutual legal assistance regime of the convention is not effective. So, India is not a part of the treaty.

Case Laws

Sharat Babu Digumarti v. Government of NCT of Delhi

In this case there was a conflict between the provisions of IPC and IT Act. The Supreme Court in this case upheld that if an electronic media is included in an offence then in that case IT Act alone would apply, as that was the legislative intent. It is a settled principal that special laws would prevail over the general laws and latter laws will over rule the prior legislation.

Gagan Harsh Sharma v. State of Maharashtra

Employees were accused of data theft by the employer and sections 408 and 420 of the Indian Penal Code and also under Sections 43, 65 and 66 of the IT Act. The Bombay High Court ruled that charges against the employees under IPC will be dropped.

---

[1] www.sciencedirect.com

[2] www.toppr.com

[3] www.cybsafe.com

[4] www.yourdictionary.com

[5] Searchsecurity.techarget.com

[6] www.coe.int

[7] AIR 2017 SC 150

[8] AIR 2019 CriL J 1398