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Law and Emerging Technology (LLB -405)


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The objective of this paper is to inform students about various new technologies and their social, political aspects along with the regulations.

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Law and Emerging Technology (LLB -405)

  1. 1. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) SEMESTER: SEVENTH SEMESTER BA LLB/ BBA LLB NAME OF THE SUBJECT: LAW & EMERGING TECHNOLOGY UNIT-1 (A) INDUSTRIAL REVOLUTION & NOTION OF TECHNOLOGY FACULTY NAME: Ms. Shivali Rawat Assistant Professor
  2. 2.  The term “industrial revolution” is a succinct catchphrase to describe a historical period, starting in 18th-century Great Britain, where the pace of change appeared to speed up. This acceleration in the processes of technical innovation brought about an array of new tools and machines. It also involved more subtle practical improvements in various fields affecting labor, production, and resource use. The word “technology” (which derives from the Greek word techne, meaning art or craft) encompasses both of these dimensions of innovation.  Fueled by the game-changing use of steam power, the Industrial Revolution began in Britain and spread to the rest of the world, including the United States, by the 1830s and ‘40s. Modern historians often refer to this period as the First Industrial Revolution, to set it apart from a second period of industrialization that took place from the late 19th to early 20th centuries and saw rapid advances in the steel, electric and automobile industries. Industrial Revolution
  3. 3. • Industrialization marked a shift to powered, special-purpose machinery, factories and mass production. The iron and textile industries became the mainstay of industrial revolution. From cooking appliances to ships, all had components of iron and steel. The process went in hyper drive with the advent of steam engine and ships. • The industrial revolution took place in the rest of Europe after Britain. It was mainly inspired by the growth of technology, prosperity, and power of Britain. The base of the industrial revolution was dependent on local resources, political will and the socio-economic condition of each individual European country. • The industrial revolution spread in all corners of the British Empire and took roots in the United States in the 1860s, after the American Civil War (1861-65). This part of the revolution is called the Second Industrial Revolution. This changed America from an agrarian society to an industrial one. • Some of the innovations of the first industrial revolution:- • Steam engine, Flying shuttle, Spinning Jenny, Cotton Gin, Cement & Modern roads, etc.
  4. 4. The Evolution of the Industrial Revolution • The First Industrial Revolution used water and steam power to mechanize production. It was the first instance where production shifted from cottage industry to large production houses or factories. • The Second industrial revolution used electric power for mass production. That is, large scale machines were brought into the picture. Huge conveyor belts rolling products one after the other, automobiles and production of electricity, defined this phase. • The discovery of computers laid the path for the third revolution. • The third phase was the most important as the machines which previously were electrically driven became electronically driven, that is, it used electronics and information technology to automate production. This came around in the middle of the 20th century. • It is seen that each revolution took about a hundred years to establish and then give way to the next revolution. • Now a Fourth Industrial Revolution is building on the third revolution, that is, the digital revolution that has been occurring since the middle of the last century. It is characterized by a fusion of technologies that is blurring the lines between the physical, digital, and biological spheres.
  5. 5. What is the Fourth Industrial Revolution? • Building on the foundation given by the third Industrial Revolution, the fourth Industrial Revolution is moving from an electronic based industry to a process which is the combination of human beings and electronics. • It includes cyber-physical systems, the Internet of things, big data analytics, cloud computing, cognitive computing, artificial intelligence, 3-D printing, and autonomous vehicles etc. • The best example would be processed artificial intelligence has broken the distinction between the Man, The Machine and Intelligence. • Impact of Industry 4.0 • Services and business models improvement. • Reliability and continuous productivity. • IT security and better resource utilization. • Machine safety and better working condition.
  6. 6. India and Industrial Revolution • India was famous for her handicrafts from the pre-British times. In Mughal periods such as the variety of handicrafts that it became famous in the global market.However, the Industrial Revolution came late to India. This was mainly because of India’s complicated political and economic relations with Britain. • Impact of the revolution:- • India dominated the cotton textile market in the 18th century. It took a severe hit when the Industrial Revolution began in England around 1760s. • The use of steam power in British mills reduced the cost of cotton by 85 %. • In order to protect its domestic industry, it began to restrict textile imports from India. On the other hand, it started to import textiles to India. • British protectionist laws led to deindustrialization in India.
  7. 7. • The new colonial law forced the farmers to grow cash crops like cotton instead of food crops, leading to famine and poverty. • The third Industrial Revolution started in India in 1980s. Advancement in this phase encompasses the spread of personal computers, internet, and ICT. • In India, the Industrial Revolution 4.0 is mainly based on Big Data and Artificial Intelligence.
  8. 8. How can Industrial Revolution 4.0 help India? • It can play a major role in alleviating poverty. • Better and low-cost health care can be achieved through the implementation of AI-driven diagnostics, personalized treatment, early identification of potential pandemics, and imaging diagnostics, among others. • Enhancing farmer’s income by providing them with the latest technologies, improvement in crop yield through real-time advisory, advanced detection of pest attacks, and prediction of crop prices to inform sowing practices. • It will strengthen infrastructure and improve connectivity to the very last village. • Artificial intelligence can be used to empower and enable specially-abled people. • It will improve ease of living and ease of doing business using smart technologies. • Recently, India has announced her drone policy, which will play an important role in security, traffic and mapping.
  9. 9. Emergence of technology in India • Science, technology and innovation have had a great impact on economic growth and social development in India. The Government moved from scientific policy resolution (1958) to the technology policy statement (1983) to the science and technology policy (2003) and finally to the science, technology and innovation policy (2013). We can look at our 40 year journey, the pre-liberalised as well as the post-liberalised India. -- First, India experimented with socialism for more than four decades, which kept out foreign capital and technologies, but spurred local innovation based on indigeneous technology. -- Second, the Indian economy didn’t start growing until the 1990s, so local companies were small. Indian entrepreneurs, therefore, developed a penchant for undertaking small projects with indigeneous (import substituted) technologies but with huge capital efficiency.
  10. 10. -- Third, local companies knew that while India has both rich and poor people, catering only to the rich limited their market. They were forced to create products that straddled the whole economic pyramid, from top to bottom. Thus affordable inclusive innovation was firmly integrated in to the strategy. -- Fourth, the most important driver happened to be India’s innovation mind-set. Some Indian leaders had the audacity to question the conventional wisdom. The mix of miniscule research budgets, small size, low prices, but big ambitions translated into an explosive combination of extreme scarcity and great aspiration, which ignited the Indian innovation.
  11. 11. • Defence: India developed diverse missiles and rocket systems, remotely piloted vehicles, light combat aircraft, etc. BraHmos Missiles is a great example of Indian prowess in a strategic technology. None of these technologies were available to India. • Nuclear energy: The entire range of technologies, from the prospecting of raw materials to the design and construction of large nuclear reactors was developed on a self-reliant basis. India’s nuclear fast-breeder reactors emerged from its thrust towards techno-nationalism. • Space technology from indigenous development to satellites to launch vehicles, from SLV to ASLV to PSLV to GSLV. India’s first moon orbiter project Chandrayan-1, Mars Orbiter Mission or even the recent simultaneous launch of 20 satellites are brilliant examples. No wonder, India is now ranked amongst handful of nations of the world that have a credible capability in space technology.
  12. 12. • Strength respects strength. It is the growing technological strength of a nation that increases its access to technology that has been denied to it. The technology denial regime itself underwent a change in India. It gave India a strong technological foundation. • For instance, India’s supercomputer journey began, when access to CRAY super computer was denied to India in mid-eighties. In 1998, C-DAC launched PARAM 10,000, which demonstrated India’s capacity to build 100-gigaflop machines. In response, the US relaxed its export controls. During the same year, CRAY, which had denied the licensing of technology, itself established a subsidiary in India. • In 2008, India signed a key civil nuclear deal with the US, which gave it access to some nuclear materials and technology. Recently, India become a member of Missile Technology Control Regime (MTCR), getting access to crucial missile technologies.
  13. 13. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) UNIT-1 (B) INTRODUCTION: IMPACT OF TECHNOLOGY ON SOCIETY & POLITICS
  14. 14. Impact of Technology on Society  Society has always been impacted by technology. Each invention has affected how people relate to one another and how cultures have expanded or ended.  Technology impacts how cities grow, where people live, and who owns what. Technologies are the reason a few people are very rich, that people are more social, and that teaching and learning is changing.  Technology has improved the general living standards of many people in the last few decades. Without technology, people would still be living within their geographical confines of their societies. Examples of technological advancements that have made life easier include things like the Internet, phones, tablets, TV, PS and movie and video games. However, these are just the positive attributes of technology; there are also a number of negative effects that it has brought upon the society in general.
  15. 15. Advantages •Education has progressed because of advances in computers. Students can learn globally without having to leave classrooms. Online learning in the future may take over the primacy completely. •Medical discoveries occur much faster, thanks to the fact that machines and computers can assist in the research process; can enable intensive educational research on medical issues. •Easy access to information •Better communication •Modern transportation technologies make it easy to travel long distances. Transportation is an important element in the lives of people and the business world. •Instant remote healthcare: An efficient healthcare alternative during pandemics and other crises has been the rise of telehealth services by remote video interpreters and other certified medical translators and interpreters.
  16. 16. Disadvantages • Social isolation: This is one of the primary problems. We see children playing in the parks less and less, and spending more and more time on their computers. • Addiction: As society progresses more in the technology field, people begin to rely more on computers and other forms of technology for their daily existence. • While technological advances in industry and at work, human workers have less value. Machines automate processes and can handle ten people with one computer; companies may not have to hire so many people to do the work. • Decrease in creativity and change in reasoning: Increased dependence on modern tools, such as calculators, has reduced creativity.
  17. 17. Impact of Technology on Politics •The combination of politics and technology covers concepts, mechanisms, personalities, efforts, and social movements including but not necessarily limited to the Internet and other information and communication technologies (ICTs). •A growing body of scholarship has begun to explore how internet technologies are influencing political communication and participation, especially in terms of what is known as the public sphere. •An influential and transformational communication and information technology is the mobile phone or smartphone, which can include: talk, text messaging, Internet and Web access, electronic mail, faxing, pictures, video, and a wide variety of apps.
  18. 18. •Mobile devices are proving to increase political participation and are now even being portrayed as a voting gadget in even the least developed countries. •Increased availability of the mobile phone and subsequent access to the public sphere has enhanced the ability of individuals and groups to bring attention to and organize around specialized issues. •More recently, social media has emerged to become one of the main areas of influence for politics, where millions of users are able to learn about politicians' policies and statements, interact with political leaders, organize, and voice their own opinions on political matters.
  19. 19. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) UNIT-1 (C) LAW, ETHICS & TECHNOLOGYAND NOTION OF TECHNOLOGICAL SOCIETY
  20. 20. Law, Ethics & Technology • Every technological invention has got both positive and negative impacts on the society. • Einstein while giving the nuclear power theory as has never expected that his discovery shall ever be used for such a devastating destruction at Hiroshima and Nagasaki, it too was not known during the 19ths that communication technology of late shall have so many alarming direction associated with it. • For example, technology provides easier and efficient means of storage and retrieval of information but at the same time suffers from piracy of copyrighted materials, software, data, music, video etc. at large scales. • Internet provides instant access to all sorts of useful information at finger tip but at the same time suffers from plagiarism, illegal uploading, downloading, copying, stealing and misuse of intellectual property. • Technology has created high-end job opportunities for the techies in one hand and on the other hand has created sever unemployment among non-tech groups.
  21. 21.  Communication Technology has made trade, investment, business simpler and unruffled through e-commerce and on-line transactions but suffers from cyber crimes, forgery, sabotage, hacking and loss. Internet has made the whole world a small intellectual village but at the same time is polluted with horrid contents like pornography, spam, worms and viruses.  Technology has enabled us to do things that we wouldn’t have dreamed of 30 years ago. Whether it’s choosing your child’s genetic traits, modifying agricultural products to enhance insect resistance, or tracking a suspected criminal’s cell phone location for a criminal investigation.  Digital technology is advancing every day. The vast computational power of the cloud and an immense accumulation of data have come together. Artificial intelligence (AI) is growing all around us and computers will behave more and more like humans. As computers start to act more like humans, there will be societal challenges. We not only need a technology vision for AI, we need an ethical vision for AI.
  22. 22.  Therefore, it is high time now for careful inspection of the legal and ethical aspects of technology as there are not enough guidelines available in this field as compared to those available in conventional branches of science and technology.  More importantly, now technology is not limited to the scientists and software engineers alone rather it has become a widespread phenomenon, affecting people at various stages in their role, as customers, service provider, participants, middlemen etc.
  23. 23. • With the elevating identity theft rates in India, the IT Act of 2000 is being tightened. According to IT amendment Bill 2006, identity theft is made an offence punishable with up to five years of imprisonment and a fine. • Another most common type of cyber scam of today is phishing in which the crooks send bogus emails tricking the user into giving up personal information at fake websites that resemble those of legitimate financial institutions and other commercial outfits.
  24. 24. Notion of technological society  The expression does not refer to particular society but to the idea or notion of the society.  It refer to a technical phenomenon.  It refer to the mental attitude of post modern man that influences the life style of the people at varying degree.  It refers to inter-dependency co-dependence, co-influence, and co-production of technology and society upon one another (technology upon culture, and vice versa). Evidence for this synergy has been found since humanity first started using simple tools.  The inter-relationship has continued as modern technologies such as the printing press and computers have helped shape society.
  25. 25. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) UNIT-2 (A) THE MODEL LAW ON E-COMMERCE
  26. 26. The Model Law on E-Commerce, 1996 • In today’s world, a large number of international trade transactions are carried out by electronic data interchange and other means of communication, commonly known as “electronic commerce”. It uses alternatives to paper-based methods of communication and storage of information. The United Nations Commission on International Trade Law (UNCITRAL), by the means of Model Law on Electronic Commerce (MLEC), sought to provide a set of internationally acceptable rules with an aim to remove legal obstacles and increase legal predictability for e-commerce. It has further improved the efficiency in international trade by providing equal treatment to paper based and electronic information, thus enabling the use of paperless communication. • UNCITRAL Model Law of E-commerce was adopted by the United Nations Commission on International Trade Law in 1996. • The model law is not a comprehensive, code-like articulation of the rules for the electronic transactions. It does not intend to govern every aspect of electronic contracting. It adopts a limited framework approach and enables and facilitates e-commerce.
  27. 27. • It has adopted the following fundamental principles of the modern electronic-commerce law: • The principle of non-discrimination – It ensures that any document would not be denied legal validity, effect, and enforceability solely on the basis that it is in electronic form. • The principle of technological neutrality – It mandates the adoption of such provisions which are neutral with respect to technology used. This aims at accommodating any future developments without any further legislative work. • The functional equivalence principle – It sets out the specific requirements that e-communication ought to meet in order to fulfil the same functions that certain notions ,in traditional paper based system, seek to achieve, for example, “writing”, “original”, “signed”, and “record”.
  28. 28. • The Model Law has been divided into two parts. The Part I relates to the general provisions relating to e- commerce, it legislates the three principles of non-discrimination, technological neutrality, and functional equivalence. • Besides establishing uniformity in the laws regarding e-commerce and legal relevance for data communicated through electronic mode, MLEC also establishes rules for formation and validity of e- contracts, for data message attribution, for receipt acknowledgement and for determining receipt of data messages, etc. • The Part II of the Model Law deals with specific provisions for e-commerce in certain areas.
  29. 29. General Provisions • Article 2 of the Law provides six definitions, the most important one is of “Data message”. It is defined as information generated, sent, received, or stored by electronic, optical, or similar means.This definition has been attributed after taking into consideration the future technological developments as well, which is the reason for inclusion of the term similar means. This wide definition includes the notion of a record and even revocation and amendment. The sphere of application that Article 1 talks about, is for the information in the form of data messages, in the context of commercial activities. • The Model Laws give the interpretational tools(Article 3) which call for a standard of international origin and uniformity in application of general principles of law. There can be variation in the communication of data messages by the agreement of the parties(Article 4).
  30. 30. Application of legal requirement to data messages • The principle of non-discrimination has been enforced by the means of Article 5 which specifies that the information communicated via electronic mode, i.e., in the form of data messages cannot be denied legal validity and effect. Information by the way of reference has also been given legal validity(Article 5 bis) and thus, the application of this law has been considerably widened. This is of utmost importance in the context of international law. • The nations required the documents to be in writing and validation was only given to the hand written signature as a form of authentication. By the means of provisions in Articles 6 & 7, the Model has done away with both of the above obstacles. Accessibility of data messages does not require the document to be in writing, and recognition of digital signature marks the approval of the full structure of the contract. This provision is termed relevant for every circumstance including a relevant agreement.
  31. 31. • The notion of originality is defined in Article 8 which provides that data messages can fulfill the legal requirement of presentation and retention of information in its original form subject to the assurance of integrity and presentability of data messages. Presentability meaning the ability to display the information where required. • Article 9 specifies that the data messages cannot be denied admissibility in the court of law solely on the basis that the information is in the form of a data message. Thus, evidentiary value has been granted to data messages. The requirement of retention of information is also met by retention of information in the form of data messages subject to the accessibility, accuracy and originality of format and identity of origin(Article 10).
  32. 32. Communication of data messages • Offer and acceptance of offer, when communicated in the form of data messages, cannot be denied legal validity and enforceability solely on the grounds that they are in the form of data messages. Thus, the formation of a valid contract was made possible through the means of data messages.(Article 11) • Acknowledgement in the form of receipt of data messages has also been granted legal validity.(Article 12) • The data message is attributed to the originator if it is sent by him or by a person authorised by him(Article 13). • Article 14 provides that the receipt of the data message and its acknowledgement can also be agreed upon by the parties beforehand. • The transaction ensues when the information goes out of control of the sender. The place of dispatch is the place of business and the time is when the acceptance enters the system of the addressee(Article 15).
  33. 33. Case Laws Different states enacted laws based on the principles of this Model Law. Thus, the courts have interpreted the provisions of their domestic laws according to the Model Law. • Khoury v. Tomlinson is a landmark case decided by the Texas Court of Appeal. The facts of this case are such that an agreement was entered via e-mail which was not signed but only the name of the originator appeared in the ‘from’ section. Referring to the principles in Article 7 of the Model Law, the court found sufficient evidence that the name in the ‘from’ section establishes the identity of the sender. • Chwee Kin Keong and others is a case dealt with by the Singapore High Court. There was the issue of unilateral mistake in this case as the wrong price was quoted on the seller’s website for a product. The server of the seller automatically sent a confirmation mail when the buyers placed an order. All the elements of the contract were established but with a mistake which eliminated consensus ad idem. Referring to the Singapore Electronic Transactions Act based on Model Laws, the court found that human errors, system errors, and transmission errors could vitiate a contract.
  34. 34. • Thus, the Model Laws became the basis for a number of legislative texts enacted by various governments across the globe and it gave a uniformity to the laws concerning the information communicated by the electronic mode of communication. • Besides formulating the legal notions of non-discrimination, technological neutrality and functional equivalence, the MLEC establishes rules for the formation and validity of contracts concluded by electronic means, for the attribution of data messages, for the acknowledgement of receipt and for determining the time and place of dispatch and receipt of data messages. • It should be noted that certain provisions of the MLEC were amended by the Electronic Communications Convention in light of recent electronic commerce practice. The Model Law is accompanied by a Guide to Enactment, which provides background and explanatory information to assist States in preparing the necessary legislative provisions and may guide other users of the text.
  35. 35. Why Is It Relevant? • The MLEC was the first legislative text to adopt the fundamental principles of non-discrimination, technological neutrality and functional equivalence that are widely regarded as the founding elements of modern electronic commerce law. • The principle of non-discrimination ensures that a document would not be denied legal effect, validity or enforceability solely on the grounds that it is in electronic form. • The principle of technological neutrality mandates the adoption of provisions that are neutral with respect to technology used. In light of the rapid technological advances, neutral rules aim at accommodating any future development without further legislative work. • The functional equivalence principle lays out criteria under which electronic communications may be considered equivalent to paper-based communications. In particular, it sets out the specific requirements that electronic communications need to meet in order to fulfill the same purposes and functions that certain notions in the traditional paper-based system - for example, "writing," "original," "signed," and "record"- seek to achieve.
  36. 36. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) UNIT-2 (B) ONLINE CONTRACTING, DIGITAL SIGNATURE & ELECTRONIC SIGNATURE
  37. 37. Online contracts • Online contracts refer to contracts that are created and signed over the Internet. Also referred to as electronic contracts or e-contracts, these contracts provide a fast and convenient way for individuals and organizations to enter into legally- binding agreements with other parties. They are now being used for a wide range of purposes, from consumer and business agreements to government filings. What is an Electronic Contract? • An electronic contract refers to an agreement that is made and signed electronically, meaning that it does not involve the use of paper or hard copy. For instance, you create a contract on a computer and send it to a business associate via email. Then, the business associate sends it back to you with an electronic signature to indicate acceptance
  38. 38. • In case of an online contract, the seller who intends to sell their products, present their products, prices and terms for buying such products to the prospective buyers. In turn, the buyers who are interested in buying the products either consider or click on the ‘I Agree’ or ‘Click to Agree’ option for indicating the acceptance of the terms presented by the seller or they can sign electronically. • Electronic signatures can be done in different ways like typing the name of the signer’s in the specific signature space, copying and pasting the scanned version of the signature or clicking an option meant for that purpose. • Once the terms are accepted and the payment is made, the transaction can be completed. The communication is basically made between two computers through servers. • The online contract is brought to the scenario to help people in the way of formulating and implementing policies of commercial contracts within business directed over internet. Online Contract is modeled for the sale, purchase and supply of products and services to both consumers and business associates.
  39. 39. Types of E-contracts • Shrink-wrap agreements are usually the licensed agreement applicable in case of software products buying. In case of shrink-wrap agreements, with opening of the packaging of the software product, the terms and conditions to access such software product are enforced upon the person who buys it. Eg: Anti virus . • Click- wrap agreements are web based agreements which require the assent or consent of the user by way of clicking “I Agree’ or “I Accept” or “Ok” button on the dialog box. In click –wrap agreements, the user basically have to agree to the terms and conditions for usage of the particular software. • n agreement made intended to be binding on two or more parties by the use of website can be called a browse wrap agreement. In case of browse wrap agreement a regular user of a particular website deemed to accept the terms of use and other policies of the website for continuous use.
  40. 40. • In case of browse wrap contracts, we usually accept the terms and conditions of the contract by clicking the button that indicates ‘ I Agree’ and in case of shrink wrap contract or purchase of a software product, assent is given by the consumer or the purchaser with tearing of the wrapper and using it. • Many of us have the tendency of not reading the terms and conditions carefully before agreeing to such. But these actions should be taken consciously and carefully only after reading the terms of the contract properly as it leads to a valid contract and the terms can be strictly enforced against them.
  41. 41. The Information Technology Act, 2000 • The Information Technology Act, 2000 has made certain provisions for the validity and the formation of online contracts but no specific legislation has been incorporated for the validity of online contracts in India. Even if no specific provision is made for the validity of online contracts, it cannot be challenged based on technical grounds. • The Information Technology Act, 2000 provides various procedural, administrative guidelines and regulates the provisions relating to all kinds of electronic transactions. These include computer data protection, authentication of documents by way of digital or electronic signature. Though electronic contracts have been given recognition by the IT Act, 2000, but majority feels it less secured to get into any kind of online contracts as there are no concrete judicial precedents for the validity and enforceability of online contracts in India.
  42. 42. Evidentiary value of electronic contracts • The evidentiary value of electronic contracts has been given recognition and can be understood in the light of various sections of Indian Evidence Act. • Sec 65B of the Indian Evidence Act deals with the admissibility of electronic records. • As per Sec 65B of the Indian Evidence Act any information contained in an electronic record produced by the computer in printed, stored or copied form shall deemed to be a document and it can be admissible as an evidence in any proceeding without further proof of the original subject to following conditions are satisfied such as • the computer(Electronic device) from where it was produced was in regular use by a person having lawful control over the system at the time of producing it, • during the ordinary course of activities the information was fed into the system on a regular basis, • the output computer was in a proper operating condition and have not affected the accuracy of the data entered.
  43. 43. Electronic Signature • Electronic Signature has been defined under Section 2(1)(ta) of the Information Technology Act, 2000. Electronic Signature means the authentication of any electronic record by a subscriber by means of the electronic technique as specified under the Second Schedule and also includes a digital signature. Types of electronic signature: Unsecured Signature • Email Signature: Just typing one’s name at the end of an email or sending a message on letterhead. They can be easily forged. • Web Signature: Web-based clickwrap contracts create a lot of difficulties in E-Commerce. The acceptance is made by clicking a single button. Such a signature doesn’t do anything about the identity of the sender. Secured Signature • This includes the signatures which are digitally secured and also which have more legal weightage.
  44. 44. Digital Signature • According to section 2(1)(p) of the Information Technology Act, 2000 digital signature means the authentication of any electronic record by a person who has subscribed for the digital signature in accordance to the procedure mentioned under section 3 of the same act. • Section 5 of the Information Technology Act, 2000 gives legal recognition to digital signatures. • Digital Signatures cryptographically bind an electronic identity to an electronic document and the digital signature cannot be copied to another document.
  45. 45. • Eg: Digital Signature is not like our handwritten signature. It is a jumble of letters and digits. It looks something like this. —– BEGIN SIGNATURE—- Uz5xHz7DxFwvBAh24zPAQCmOYhT47gvuvzO0YbDA5txg5bN1Ni3hgPg nRz8Fw xGU oDnj7awl7BwSBeW4MSG7/3NS7oZyD/AWO1Uy2ydYD4UQt/w3d6D2Ilv3 L8EOr5K8Gpe5Z K5CL END SIGNATURE ——
  46. 46. DIGITAL SIGNATURE ELECTRONIC SIGNATURE Being unique to an individual, Digital certificate is required in case of digitally signing a document. The certificate has public and private key called a 'key pair'. An electronic signature is a method to represent signature on a document that is computerized. In multiple different ways a signature either on a document or a device can be captured. In case of digital signatures online, if any change is done in the document after the signature is applied, it will refer the signature as invalid signature. Alterations can easily take place in case of electronic signature. Encryption done by using a digital certificate is very secure. . Electronic signatures as not based on standards are inclined towards using methods based on proprietary aspects so are comparatively less secure.
  47. 47. As a digital signature online is linked with the private key of an individual, it is unique and hard to deny Verification of electronic signatures is comparatively tough. As Digital signatures are without fail time stamped hence are useful in a court of law to link a person to signature at a particular time and date. Although a date and time is associated with the electronic signature but as separately held, open to misuse.
  48. 48. Holding a log of multiple events, digital signature can verify when any signature was applied. Advanced digital signature products such as Approveme, send out notifications in case if a log is altered. Audit logs are not applied in an easy way to electronic signatures. The digital certificates represent individual signatories by giving details of the individual signing the document. To say full name, email address and company. Details of an individual placing an electronic signature are not held with the signature itself therefore are more prone to get tampered.
  49. 49. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) UNIT-2 (C) JURISDICTION ISSUE IN E-COMMERCE
  50. 50. JURISDICTION ISSUE IN E-COMMERCE • E- commerce plays a vital role in nearly every sphere of life- with simply just a click of the mouse we can pay our electricity/telephone bills, do online shopping, transfer money to persons in different parts of the globe, conduct business deals etc. An online transaction may be explained as a way of conducting business by utilizing computer and telecommunication technology to exchange data or conduct business. However, this boom in internet transactions has brought a host of issues regarding jurisdiction of such transactions to the forefront. • The primary question that needs to be addressed is “when a transaction takes place online, where is the contract concluded?” Justice S. Muralidhar has stated that the traditional approach to jurisdiction invites a court to ask whether it has the territorial, pecuniary, or subject matter jurisdiction to entertain the case brought before it. With the internet, the question of ‘territorial’ jurisdiction gets complicated largely on account of the fact that the internet is borderless.
  51. 51. • The Indian position theoretically matches with the US rule of minimum contracts. For civil matters, the Code of Civil Procedure, 1908 governs the jurisdiction aspect. • Section 19 of the Act states that where a suit is instituted for compensation on account of wrong done, if such a wrong was committed within the local limits of the jurisdiction on one court and the defendant resides in or carries on business, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of the courts. • Thus, for instance, if Mr. X residing in Bangalore publishes on his website in Chennai defamatory statements against Mr. Y. Mr. Y may sue Mr. X either in Bangalore or Chennai.
  52. 52. • Section 20 of the CPC further provides that the suit shall be instituted within the local limits of whose jurisdiction the defendant resides or the cause of action arises. For example, A is a tradesman in Calcutta. B carries on business in Delhi. B buys goods of A online and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen, or in Delhi, where B carries on business. • Further, Section 13 of CPC provides that a foreign judgment is to be conclusive as to any matter which has been directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except under certain specified conditions. Talking about the presumption as to foreign judgments the provisions of the Act states that the Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.
  53. 53. • Casio India Co. Ltd. vs Ashita Tele Systems Pvt. Ltd. [2003] The Hon’ble Delhi High Court has observed that once access to the Defendants website could be had from anywhere else, jurisdiction could not be confined to the territorial limits of the place where the Defendant resided and the fact that the Defendants website could be accessed from Delhi was sufficient to invoke the territorial jurisdiction of a court in Delhi. • Another leading judgment is of (India TV) Independent News vs India Broadcast Live [2007]. Here the Delhi High Court differed with its earlier judgment in Casio India. The Court holds that jurisdiction of the forum court does not get attracted merely on the basis of interactivity of the website which is accessible in the forum state but yet held that. if the Defendants website is interactive, permitting browsers not only to access the contents thereof but also to subscribe to the services provided by the owners/operators, then courts jurisdiction at the place where the website is accessed from is permissible.
  54. 54. The High Court of Delhi ruled that it did not have jurisdiction over the domain name, because the defendant was based in Arizona. The court relied on the US circuit case Compuserve Inc. v. Patterson, which referred to a three-part test for deciding jurisdiction: -- The defendant must purposefully avail itself of acting in the forum state or causing a consequence in the forum state. -- The cause of action must arise from the defendant’s activities there -- The acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum to make exercise of jurisdiction over the defendant reasonable
  55. 55. • In Banyan Tree Holding (P) Ltd v. A. Murali Krishna Reddy and Anr, The Delhi High Court stated that in order to establish the jurisdiction in forum court, even when a long arm statute exits, the Plaintiff would have to show that the Defendant purposefully availed of the jurisdiction of the forum state by specifically targeting customers within the forum state. A mere hosting of an interactive website without any commercial activity being shown as having been conducted within the forum state would not enable the forum court to have jurisdiction. The law as laid down in the case may be summarised as follows: -- Some commercial transaction must have taken place as a result of the site -- The defendant must have specifically targeted the forum state. -- Some injury must have resulted to the plaintiff due to the actions of the defendant -- The plaintiff must have a presence in the forum state, and not merely the possibility of a presence
  56. 56. • In India's first case of cyber defamation, SMC Pneumatics (India) Private Limited v. Jogesh Kwatra a Court of Delhi assumed jurisdiction over a matter where a corporate reputation was being defamed through emails and passed an injunction which restrained the employee from sending, publishing and transmitting emails which are defamatory or derogatory to the plaintiffs. • Another important legislation to be considered for online transactions is the Information Technology Act, 2000. This legislation was enacted to change outdated laws and deal with cyber crimes. A section which becomes relevant from the IT Act in terms of online transactions is Section 13 (3) which provides that: “Save as otherwise agreed between the originator and the addressee, an electronic record is deemed to be dispatched at the place where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business.”
  57. 57. • If an air ticket is booked by a Complainant over the internet which is also sent by an Airline Company to the Complainant through email, then these would be dispatches of electronic records. • The request for booking of the air ticket would be an offer and the emailing of the ticket to the consumer would be the acceptance. In terms of Sec. 13 (3) of the I.T. Act, the ticket or, in other words, the acceptance of the offer for its purchase, would be deemed to have been received at the Complainant's place of business. • Resultantly, the contract for purchase of the air ticket would be taken to have been made at the Complainant’s place of business. Acceptance of the contract would also be deemed to have been communicated there.
  58. 58. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) UNIT-2 (D) E-PAYMENT & E-BANKING
  59. 59. • Electronic banking has many names like e banking, virtual banking, online banking, or internet banking. It is simply the use of electronic and telecommunications network for delivering various banking products and services. Through e-banking, a customer can access his account and conduct many transactions using his computer or mobile phone. • Internet banking is the system that provides the facility to the customer to conduct the financial and non- financial transactions from his net banking account. The user can transfer funds from his account to other accounts of the same bank/different bank using a website or an online application. The customer uses a resource and a medium to conduct financial transactions. The resource that a customer uses might be an electronic device like a computer, a laptop, or a mobile phone. The internet is the medium that makes the technology possible. • The facility of internet banking is provided through banks and the customer must be an account holder with any bank to get the facility available for him/her. E-Banking
  60. 60. • Lesser transaction costs – electronic transactions are the cheapest modes of transaction. • A reduced margin for human error – since the information is relayed electronically, there is no room for human error. • Lesser paperwork – digital records reduce paperwork and make the process easier to handle. Also, it is environment-friendly. • Reduced fixed costs – A lesser need for branches which translates into a lower fixed cost. • More loyal customers – since e-banking services are customer-friendly, banks experience higher loyalty from its customers. Advantages
  61. 61. • Convenience – a customer can access his account and transact from anywhere 24x7x365. • Lower cost per transaction – since the customer does not have to visit the branch for every transaction, it saves him both time and money. • No geographical barriers – In traditional banking systems, geographical distances could hamper certain banking transactions. However, with e-banking, geographical barriers are reduced.
  62. 62. • Internet banking is the system that provides the facility to the customer to conduct the financial and non- financial transactions from his net banking account. The user can transfer funds from his account to other accounts of the same bank/different bank using a website or an online application. • The customer uses a resource and a medium to conduct financial transactions. The resource that a customer uses might be an electronic device like a computer, a laptop, or a mobile phone. The internet is the medium that makes the technology possible. • The facility of internet banking is provided through banks and the customer must be an account holder with any bank to get the facility available for him/her. E- Payment
  63. 63. • A one-time customer-to-vendor payment is commonly used when you shop online at an e-commmerce site, such as Amazon. You click on the shopping cart icon, type in your credit card information and click on the checkout button. The site processes your credit card information and sends you an e-mail notifiying you that your payment was received. • You make a recurring customer-to-vendor payment when you pay a bill through a regularly scheduled direct debit from your checking account or an automatic charge to your credit card. This type of payment plan is commonly offered by car insurance companies, phone companies and loan management companies. this type of automated payment schedule. • To use automatic bank-to-vendor payment, your bank must offer a service called online bill pay. Types of E-Payment
  64. 64. Advantages of online payments • Low labour costs • Since online payments are usually automatic, they have lower labour costs than manual payment methods, such as cheque, money order, cash and EFTPOS. • Convenience for online sales • Online payment methods allow conveniently selling goods and services online. • Automatic • Online payments can be automatic, which can be convenient for you and your customers. • Fast transaction speed • Online transactions quickly provide feedback to you and your customers. • Low risk of theft • After processing delays, online payments generally go straight into your bank account, so they have a low risk of theft.
  65. 65. Disadvantages of online payments Online payment methods have several disadvantages. Check out these examples: • Service fees • Payment gateways and third-party payment processors charge service fees. • Inconvenient for offline sales • Online payment methods are inconvenient for offline sales. • Vulnerability to cybercriminals • Cybercriminals can disable online payment methods or exploit them to steal people’s money or information. • Reliance on telecommunication infrastructure • Internet and server problems can disable online payment methods. • Technical problems • Online payment methods can go down due to technical problems.
  66. 66. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) UNIT-3 (A) CYBER CRIME UNDER INFORMATION TECHNOLOGY ACT: NATIONAL PERSPECTIVE
  67. 67. CYBERCRIMES • Cybercrimes are criminal offenses committed via the Internet or otherwise aided by various forms of computer technology, such as the use of online social networks to bully others or sending sexually explicit digital photos with a smart phone. But while cybercrime is a relatively new phenomenon, many of the same offenses that can be committed with a computer or smart phone, including theft or child pornography, were committed in person prior to the computer age. This sub-section includes articles on cyber bullying, sexting, and a whole host of other crimes commonly committed online or with the help of computer networking technology. • 1. Hacking: - Hacking means unauthorized access to a computer system. As defined in Section 66 of the Information Technology Act, 2000, whoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by means commits hacking.
  68. 68. • 2. Virus, Trojans and Worms: - A Computer virus is a program designed to affect the health of the computer. They destroy or hampers the computer systems. Trojan is defined as a ―maliciously, security breaking program that is disguised as something benign such as a directory lister, archive, game, or a program to find and destroy viruses. • 3. Cyber Pornography: - Cyber pornography is pornography‘s which is distributed via the internet, primarily websites, peer-to peer file sharing or Usenet newsgroups. This is a crime that is clearly illegal, both on and off the internet • 4. Cyber Stalking: - Cyber Stalking is defined as the repeated acts of harassment or threatening behaviour of the cybercriminal towards the victims by using internet services. • 5. Cyber Terrorism: - Cyber terrorism may be defined to be ― the premeditated use of disruptive activities, or the threat thereof, in cyber space, with the intention to further social, ideological, religious, political or similar objectives, or to intimate any person in furtherance of such objectives • 6. Cyber Crimes related to Finance: - Crimes over internet for earning financial or monetary gain thorough illegal means. It may occur in many forms, but the most recognized technique is online fraud and spoofing. This would include cheating, credit card frauds, money laundering, etc.
  69. 69. Cyber Crime under Information Technology Act: National Perspective Statuary Provisions (Information Technology Act, 2000) • The first step in the field of cyber law was the Model Law which was drafted under the United Nations Commissions on International Trade law, 1986. Then, the United Nations general assembly on 30th January, 1999 passed a resolution to regulate e-commerce through uniform set of laws applicable to its member‘s countries. • Being a signatory to the resolution, Parliament of India has a passed the Information Technology Act, 2000 on 17th may, 2000. • The preamble of the Act states that the objectives of the act is to legalise e-commerce and further amend the Indian penal Code, 1860, the India Evidence Act,182, the Banker‘s Book Evidence Act, 1891and the Reserve Bank of India Act, 1934 to make compatible with this Act.
  70. 70. • The Act consists of 13 Chapters and governs laws relating to Electronic Contract, Electronic Record, Digital Signature and the use of the electronic records and signature in Government records. It also regulates the activities of the Network Service Providers, Internet Service Providers (ISPs). Punishments And Offences • The main aim of the act is to legalize the digital language so that people can easily and without fear use the electronic devices for their own purposes like doing business or for entertainment. It prescribes certain offences and penalties to keep a check on the cyber crime, the main of them are: • Section 65: Tampering with Computer Source Documents • Section 66: Hacking with Computer System • Section 67: Publishing of obscene information which is obscene in electronic form. • Section 72: Penalty breach of confidentially and privacy.
  71. 71. • In addition to above, Section 77 of the Act states that “No penalty imposed or confiscation made under this Act shall prevent the imposition of any other punishment to which the person affected thereby is liable under any other law for the time being in force.” which means the civil crimes can also be made as Criminal Act, as: • Computer Network Breaking and Hacking: - S. 66(2) of I.T. Act and S. 441 of IPC • Child Pornography: - S. 67 of I.T. Act and S. 294 of IPC • Email- bombing: - S. 43(e) of I.T. Act and S. 425-441 read with S447 of IPC • Password Sniffing: - S. 43(a), (g) of I.T. Act and S. 419 of IPC • Credit Card Fraud: - S. 43(h) I.T. Act and S. 443 (a) and (g) read with 426, 427 and 447 of IPC.
  72. 72. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) UNIT-3 (B) CYBER CRIME UNDER INFORMATION TECHNOLOGY ACT: INTERNATIONAL PERSPECTIVE & CONVENTIONS
  73. 73. USA • The Computer Fraud and Abuse Act, deals with the issue of unauthorized access in the U S legal system. The legislation was first enacted in 1984, revised in 1994, and last amended made in late 1996. • Thus, USA has passed several enactments, which cover various aspect of cyber crime. The States of USA also pass various federal laws for the protection of cyber crime. These Federal Acts, however either are to introduced or amend existing provisions in U.S. Federal Code. • The major provisions of U.S. codes governing criminal activities can broadly discussed in the following heads:  Federal Criminal Code Concerning computer crimes  Federal Statutes Governing Intellectual property Rights: • Copyright Offences • Copyright Management offences • Trademark offences.
  74. 74. • Bootlegging offences • Trade Secret Offences • Offences concerning the integrity of IP System • Offences concerning the Misuse of Dissemination system • Cyber Stalking  Search and seizure of Computers  Guidelines concerning sentences • U.S.A. has successfully enacted provisions relating to offences, there investigation and sentencing. The country is leading in the field of checking cybercrime along through effective police forces, particularly F.B.I., and people cooperation. The numbers of cyber criminals are also greater in the country because of predominance of internet and cyber technology in day-to-day life. • The Counterfeit Access Device and Computer Fraud and Abuse Act of 1984 prohibits various attacks on federal computer systems and on those used by banks and in interstate and foreign commerce.
  75. 75. • The Electronic Communications Privacy Act of 1986 (ECPA) prohibits unauthorized electronic eavesdropping. • The Federal Information Security Management Act of 2002 (FISMA). • United States has a specific CAN-Spam Act 2003, which came into force in January 2004. Major provisions are:  False and misleading header information is banned  Deceptive subject lines are prohibited  Opt-out methods must be provided  Commercial email must be identified as an advertisement and it must include the sender's valid physical postal address  Receivers must be warned of sexually explicit material. Penalties include fine up to USD 11000 and also imprisonment in specific circumstances.
  76. 76. UK • The Computer Misuse Act 1990, 'an Act to make provision for securing computer material against unauthorized access or modification; and for connected purposes', set out three computer misuse offences. • Unauthorized access to computer material • Unauthorized access with intent to commit or facilitate commission of further offences. • Unauthorized modification of computer material. • The maximum prison sentences specified by the act for each offence were six months and five years respectively. • The Police and Justice Act 2006 : The British Police and Justice (2006) bill was granted Royal Assent with some interesting changes being introduced to the Computer Misuse Act (1990) under Part 5 (Miscellaneous) which could have serious implications for those on the murkier side of computing. The Computer Misuse Act obviously needed updating, as most of the threats in existence today were not possible 16 years ago. Maximum sentencing for unauthorized access to computer was also used.
  78. 78. BUDAPEST CONVENTION • Budapest Convention on cybercrime provides for the criminalisation of conduct, ranging from illegal access, data and systems interference to computer-related fraud and child pornography; procedural law tools to make the investigation of cybercrime and the securing of e-evidence in relation to any crime more effective and international police and judicial cooperation on cybercrime and e-evidence. • The Budapest Convention is supplemented by a Protocol on Xenophobia and Racism committed through computer systems. • In 2014, the Council of Europe established a dedicated Programme Office on Cybercrime (C-PROC) in Bucharest, Romania. • This triangle of common standards (Budapest Convention), follow-up and assessments (Cybercrime Convention Committee) and capacity building (C-PROC) represents a dynamic framework under the convention.
  79. 79. • Members: 67 states — together with 10 international organisations (such as the Commonwealth Secretariat, INTERPOL, International Telecommunication Union and the UN Office on Drugs and Crime) participate as members or observers in the Cybercrime Convention Committee. • Significance: Securing e-evidence for criminal justice purposes is particularly challenging in the context of cloud computing where data is distributed over different services, providers, locations and often jurisdictions, and where mutual legal assistance is often not feasible. • India and the Budapest Convention: While membership in the Budapest Convention more than doubled since then, India is yet to join this treaty.
  80. 80. India's concern: • As India did not participate in the negotiation of the Convention and thus should not sign it. India can become a member but we cannot participate in making or changing the law. • The Budapest Convention allows for trans-border access to data and thus infringes on national sovereignty. • It is a criminal justice treaty and thus does not cover state actors or that some of the states from which most attacks affecting India emanate have not signed the Convention. • India should promote a treaty at the UN level: India wants a treaty to focus on terrorism, or to address state-to-state relations and matters of international security. • The Budapest Convention has been validly criticized for its lack of human rights and legal safeguards.
  81. 81. RUSSIA-LED RESOLUTION • The Russian proposal entitled “Countering the use of information and communications technologies for criminal purposes” was recently put forth in the United Nations General Assembly (UNGA). • The proposal, which India voted in favour of, creates a committee to convene in August 2020 in New York to establish a new treaty through which nation-states can coordinate and share data to prevent cybercrime. • India maintained its status as a non-member of the Europe-led Budapest Convention, even as it voted in favour of a Russian-led UN resolution to set up a separate convention • This recent UN proposal follows previous Russian initiatives, including the “Draft United Nations Convention on Cooperation in Combating Cybercrime” in 2017 to develop a UN convention on cybercrime. • India’s Stand • India maintained its status as a non-member of the Europe-led Budapest Convention. Although, India voted in favour of a Russian-led UN resolution to set up a separate convention.
  82. 82. SUMMARY • The United Nations has approved a Russian-led bid that aims to create a new convention on cybercrime, alarming rights groups and Western powers that fear a bid to restrict online freedom. • The General Assembly approved the resolution sponsored by Russia and backed by China, which would set up a committee of international experts in 2020. • Why the US is worried about this? • A new UN treaty on cybercrime could render the Budapest Convention obsolete, further alarming rights groups. • The Budapest Convention was drafted by the Council of Europe, but other countries have joined, including the United States and Japan. • Russia has opposed the Budapest Convention, arguing that giving investigators access to computer data across borders violates national sovereignty.
  83. 83. • What is Budapest convention? • Also known as the Convention on Cybercrime, it is the first international treaty seeking to address Internet and computer crime by harmonizing national laws, improving investigative techniques, and increasing cooperation among nations. • It was drawn up by the Council of Europe in Strasbourg, France, with the active participation of the Council of Europe’s observer states Canada, Japan, South Africa and the United States. • It is open for ratification even to states that are not members of the Council of Europe. • As of September 2019, 64 states have ratified the convention. • It was drawn up by the Council of Europe in Strasbourg, France, with the active participation of the Council of Europe’s observer states Canada, Japan, Philippines, South Africa and the US. • It was opened for signature in Budapest, on 23 November 2001 and it entered into force on 1 July 2004. • The convention is the sole legally binding multilateral treaty that coordinates cybercrime investigations between nation-states and criminalizes certain cybercrime conduct.
  84. 84. • What it does? • The Budapest Convention provides for the criminalisation of conduct, ranging from illegal access, data and systems interference to computer-related fraud and child pornography, procedural law tools to make investigation of cybercrime and securing of e-evidence in relation to any crime more effective, and international police and judicial cooperation on cybercrime and e-evidence. • India’s concerns over signing of this agreement: • India did not participate in the negotiation of the Convention and thus is worried about it. • The Convention — through its Article 32b — allows for transborder access to data and thus infringes on national sovereignty. • The regime of the Convention is not effective, “the promise of cooperation not firm enough,” or that there are grounds for refusal to cooperate.
  85. 85. • Why dint India ratify? • Since it entered into force, important countries like Brazil and India have declined to adopt the Convention on the grounds that they did not participate in its drafting. • India’s is concerned due to data sharing with foreign law enforcement agencies as it infringes on national sovereignty. The Russian proposal • It entitled “Countering the use of information and communications technologies for criminal purposes” was passed in the UNGA. • It allows for regarding cross-border access to data, including by limiting the ability of a signatory to refuse to provide access to requested data. • The proposal creates a committee to convene in August 2020 in New York to establish a new treaty through which nation-states can coordinate and share data to prevent cybercrime.
  86. 86. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) UNIT-3 (C) CYBER JURISDICTION
  87. 87. CYBER JURISDICTION • The internet can be seen as a multi jurisdictional because of the ease which a user can access of website anywhere in the world. It can be even viewed as a jurisdictional issue in the sense that from the user‘s perspective that the state and national borders are essentially transparent. For courts determining jurisdiction situation is more problematic. • The whole trouble with internet jurisdiction is the presence of multiple parties in various parts of the world who have only a virtual nexus with each other. Then, if one party wants to sue the other, where can he sue? • Traditional requirement generally encompass two areas:- • 1. Firstly, the Place where the defendant reside, or • 2. Secondly, where the cause of action arises.
  88. 88. • However, in the context of the internet or cyberspace (Cyberspace is the electronic medium of computer networks, in which online communication takes place), both these are difficult to establish with any certainty. Issues of this nature have contributed to the complete confusion and contradictions that plague judicial decisions in the area of internet jurisdiction. • Because cyberspace has no geographical boundaries, it establishes immediate long-distance communications with anyone who can have access to any website. Usually an internet user has no way of knowing exactly where the information on a site is being accessed from. Here, i.e., in cyberspace, jurisdiction issues are of primary importance. As Internet does not tend to make geographical and jurisdictional boundaries clear, Internet users remain in physical jurisdictions and are subject to laws independent of their presence on the Internet.
  89. 89. • In each case, a determination should be made as to where an online presence will subject the user to jurisdiction in a distant state or a foreign company. As such, a single transaction may involve the laws of at least three jurisdictions: • 1. The laws of the state/nation in which the user resides, • 2. The laws of the state/nation that apply where the server hosting the transaction is located, and • 3. The laws of the state/nation which apply to the person or business with whom the transaction takes place. • So a user in one of the Indian States conducting a transaction with another user in Britain through a server in Canada could theoretically be subject to the laws of all three countries as they relate to the transaction at hand. The laws of a nation may have extra-territorial impact extending the jurisdiction beyond the sovereign and territorial limits of that nation. This is particularly problematic, as the medium of the Internet does not explicitly territorial limitations.
  90. 90. • There is no uniform, international jurisdictional law of universal application, and such questions are generally a matter of conflict of law, particularly private international law. • An example would be where the contents of a web site are legal in one country and illegal in another. In the absence of a uniform jurisdictional code, legal practitioners are generally left with a conflict of law issue. • Jurisdiction in case of Cyber crime • In order for a national court to adjudicate criminal and regulatory sanctions internationally, there must be some connection, or nexus, between the regulating nation (the forum) and the crime or criminal. Four nexuses have been invoked by courts to justify their exercise of jurisdiction.
  91. 91. • 1. The territoriality nexus holds that the place where an offense is committed-in whole or in part determines jurisdiction. • 2. The nationality nexus looks to the nationality or national character of the person committing the offense to establish jurisdiction. • 3. The protective nexus provides for jurisdiction when a national or international interest of the forum is injured by the offender. • 4. The universality nexus holds that a court has jurisdiction over certain offenses that are recognized by the community of nations as being of universal concern, including piracy, the slave trade, attacks on or the hijacking of aircraft, genocide, war crimes, and crimes against humanity. It is not enough that these nexuses exist; the connection between the forum and the person or activity also must be “reasonable.”
  92. 92. Extra territorial jurisdiction • The main problem arises when a citizen of some other country causes harm to citizens of a native country, let’s take for an example in India, though Information Technology Act, 2000 does have extra territorial jurisdiction but it’s very difficult to enforce it and exercise it. • If a crime is committed in Delhi by a citizen of US by hacking the systems of an Indian Company, that maximum the court can do is pass an order in favour of the plaintiff but the problem arises that how to punish the US citizen, the only thing which the hacker has to do is avoid coming to India, moreover as it’s an international matter collection of evidence will also be a trouble for all. • Hacking is still a crime of greater degree but it creates problem in case of crimes like publishing obscene materials on websites, if a citizen of U.K posts obscene material. Are the international Extradition laws strict enough enforce an arrest? What if the Act is an offence in India but not in his native country? • Prosecuting and trying a person also raises difficult problem in the field of jurisdiction. These problems relate to determination of place where the offence was committed (locus delicti- The place where a crime was committed) and where several jurisdictions are equally competent.
  93. 93. • Under the Information Technology Act, 2000, India claims “long arm” jurisdiction over foreign parties committing criminal acts outside of India which have an effect on a computer information system located within India. A court may order law enforcement authorities to seize computer equipment that is suspected of having been used in the commission of a computer crime. It is possible for more than one punishment to be administered for commission of the same unlawful acts if more than one criminal law has been violated. Section 75 of the Information Technology Act, 2000 deals with extraterritorial application of the law, the section states that the provisions of the Act will apply to • (a)Any person irrespective of nationality • (b)An offence or contravention committed outside India • (c)The said offence or contravention must have been committed against a computer, computer system or computer network located in India.
  94. 94. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) UNIT-3 (D) MOBILE PHONES CRIMES
  95. 95. MOBILE PHONES CRIMES • Telecommunications in India have evolved up to a great extent starting from its introduction in 1882 to the introduction of mobile technology in 1995 and then to the emerging trend of Smartphone’s post 2005 period. Similarly, with the advancement of technology, crimes over technological grounds have also evolved. • Mobile technology over the years has evolved upto a large extent be it on grounds of flexibility or portability. Security measures too have improved, but not at the desired expected rate to absolutely curb crime rates. The fact that tops the list is that people fail to believe that they can be victims to such crimes. • Crime committed using modern technological tools are generally known as cyber crimes. The broadest way to deliver the true meaning of cyber crime is “any crime wherein computer is either used as a tool or a weapon.” On general lines, computers are considered to be of laptop or desktop in form.
  96. 96. Kinds of Mobile Crimes Mobile Hacking • Hacking in simple terms means an illegal intrusion into a computer system and/or network. There is an equivalent term to hacking i.e. cracking. Every act committed towards breaking into a mobile, communication devices, computer and/or network is hacking. Hackers write or use ready-made computer programs to attack the target computer, mobile and/or communication devices. Mobile Cyber Defamation • This kind of crime has become widely prevalent across the world today. Criminals send derogatory, humiliative and obscene SMS or email by using their mobiles, cell phones and communication devices, so as to defame others and lower their reputation in the eyes of those who hold them in high esteem.
  97. 97. Mobile Pornography • The Internet is being highly used by its abusers to reach and abuse children sexually, worldwide. The internet is very fast becoming a household commodity. As more homes have access to internet, more children would be using the mobiles, communications devices, internet and more are the chances of falling victim to the aggression of pedophiles. • Mobile Pornography using mobile phone could be brought specifically within the ambit of section 67B of the amended Indian Information Technology Act 2000. The said act is a crime, punishable with imprisonment of either description for a term which may extend to 5 years and with fine which may extend to 10 lakh rupees. Identity Theft: • Mobile phone is used for the identity theft and criminals commit the crimes such as subscription fraud etc. using various communication devices.
  98. 98. Cloning or re-chapping of mobile: • A clone is an analogue mobile phone which has been programmed to impersonate one owned by a legitimate subscriber by using its ESN and telephone number (these numbers are usually obtained by interception with a ‘scanner’ radio, theft of a dealer’s or service provider’s records or directly from the impersonated phone). New types of cloned phones are coming to the UK from the USA and Hong Kong: ‘tumbling’ phones automatically seek an identity from a pre-programmed list, and the most recent ‘magic’ phones act as their own scanners copying identities from nearby phones in use. Mobile Cyber Stalking • Cyber Stalking can be defined as the repeated acts harassment or threatening behaviour of the cyber- criminal towards the victim by using mobiles internet services. Stalking in General terms can be referred to as the repeated acts of harassment targeting the victim such as following the victim, making harassing phone calls, killing the victims pet, vandalizing victims property, leaving written messages or objects. Stalking may be followed by serious violent acts such as physical harm to the victim and the same has to be treated and viewed seriously. It all depends on the course of conduct of the stalker.
  99. 99. • Denial of service Attack • This is an act by the criminal, who floods the bandwidth of the victim’s network or fills his e-mail box with spam mail depriving him of the services he is entitled to access or provide. • Mobiles Virus Dissemination • A mobile virus is an electronic virus that targets mobile phones or other communication devices. In typical mobile virus dissemination malicious software attaches itself to other software. • Mobile Software Piracy • Theft of mobile software through the illegal copying of genuine programs or the counterfeiting and distribution of products intended to pass for the original.
  100. 100. Mobile Credit Card Fraud • The unauthorized and illegal use of a credit card through mobile to purchase products and /or services. Mobile Phishing • This refers to the act of targeting mobile phone users by phishing emails that appear to come from mobile service providers. This further includes the act of sending an e-mail to a user falsely claiming to be an established legitimate enterprise in an attempt to scam the user into surrendering private information that will be used for identity theft.
  101. 101. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) UNIT-4 (A) GENETIC TECHNOLOGIES
  102. 102. • Environment Effect: Environment Protection Act What Are GMOs? A GMOs (genetically modified organism) is the result of a laboratory process where genes from the DNA of one species are extracted and artificially forced into the genes of an unrelated plant or animal. The foreign genes may come from bacteria, viruses, insects, animals or even humans. Because this involves the transfer of genes, GMOs are also known as transgenic organisms. • Genetic Engineering - means the technique by which heritable materials which do not usually occur or will not occur naturally in the organism or cell concerned generated outside the organism of the cell is inserted into said cell or organism. It also means the formation of new combinations of genetic material by incorporation of a cell into a host cell, where they occur naturally as well as an modification of an organism or in a cell by delegation and removal of parts of the heritable material.
  103. 103. • For centuries crop plants and livestock have been crossbred such that the genetic make-up of offspring has been altered to select for desired traits and or qualities. Traditional plant and animal breeding techniques require that the individual species involved are the same or closely related. However the discovery of genetic engineering techniques have made it possible to introduce, delete or enhance particular traits in an organism either by inserting genes from another organism or by otherwise altering its genetic make-up. Genetically Modified Organisms are defined in EU Legislation as those in which the genetic material is altered in a way that does not occur naturally by mating or natural recombination. Where GMOs comprise bacteria, viruses, viroids and animal and plant cells in culture they are referred to as Genetically Modified Micro-Organisms or GMMs.
  104. 104. ENVIRONMENT PROTECTION ACT (1986) AND ENVIRONMENT (PROTECTION) RULES (1986) • The Act relates to the protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plants and property. The Act mainly covers the rules to regulate environmental pollution and the prevention, control, and abatement of environmental pollution. The Environment (Protection) Rules cover management and handling of hazardous wastes, manufacture, storage and import of hazardous chemicals and rules for the manufacture, use, import, export and storage of hazardous micro-organisms, genetically engineered organisms or cells. • Rules for the Manufacture, Use/Import/Export and Storage of Hazardous Microorganisms/Genetically Engineered Organisms or Cells. (notified under the EP Act, 1986) (1989)
  105. 105. • These Rules include the rules for pharmaceuticals, transit and contained use of genetically engineered organisms micro-organisms and cells and substances/products and food stuffs of which such cells, organisms or tissues form a part, LMOs for intentional introduction into the environment, handling, transport, packaging and identification. These rules are applicable to the manufacture, import and storage of micro-organisms and gene technology products. The rules are specifically applicable to: (a) Sale, storage and handling (b) Exportation and importation of genetically engineered cells or organisms (c) Production, manufacturing, processing, storage, import, drawing off, packaging and repackaging of genetically engineered products that make use of genetically engineered microorganisms in any way.
  106. 106. GENETIC ENGINEERING AND PLANT VARIETY ACT • The Protection of Plant Varieties and Farmers’ Rights Act 2001 was enacted in India to protect the new plant varieties. Rules for the same were notified in 2003. The Act has now come into force. The Protection of Plant Varieties and Farmers’ Rights Authority has been set up and is responsible to administer the Act. The office of the Registrar has started receiving applications for registration of twelve notified crops viz. rice, lentil, maize, green gram, kidney bean, black gram, chickpea, pearl millet, pigeon pea, sorghum, field pea, bread wheat. Under the TRIPS agreement it is obligatory on part of a Member to provide protection to new plant variety either through patent or an effective sui generis system or a combination of these two systems. India was therefore under an obligation to introduce a system for protecting new plant variety. India opted for sui generis system and enacted The Protection of Plant Varieties and Farmers’ Rights Act 2001. • However, in many countries such plants can be protected through Breeders’ Rights, patents and UPOV Convention. Objectives of Protection of Plant Varieties and Farmers’ Rights Act in India The objectives of the Protection of Plant Varieties and Farmers’ Rights Act are: • to stimulate investments for research and development both in the public and the private sectors for the developments of new plant varieties by ensuring appropriate returns on such investments; •
  107. 107. • to facilitate the growth of the seed industry in the country through domestic and foreign investment which will ensure the availability of high quality seeds and planting material to Indian farmers; and • to recognize the role of farmers as cultivators and conservers and the contribution of traditional, rural and tribal communities to the country’s agro biodiversity by rewarding them for their contribution through benefit sharing and protecting the traditional right of the farmers. More importantly this act provides safeguards to farmers by giving farmers’ rights while providing for an effective system of protection of plant breeders’ rights. The Act seeks to safeguard researchers’ rights as well. It also contains provisions for safeguarding the larger public interest. The farmer’s rights include his traditional rights to save, use, share or sell his farm produce of a variety protected under this Act provided the sale is not for the purpose of reproduction under a commercial marketing arrangement.
  108. 108. • What kind of varieties are registerable under the plant variety Act? • 1. A new variety if it conforms to the criteria of novelty, distinctiveness, uniformity and stability. • 2. An extant variety if it conforms to criteria of distinctiveness, uniformity and stability. “Extant Variety” defined in PPVFR Act, 2001 An “Extant Variety” means a variety, which is– (i) notified under section 5 of the Seeds Act, 1966 (54 of 1966); or (ii) a farmers’ variety; or (iii) a variety about which there is common knowledge; or (iv) any other variety which is in the public domain. • Farmers’ Variety as per PPVFR Act, 2001 • “Farmers’ Variety” means a variety which- • has been traditionally cultivated and evolved by the farmers in their fields; or • is a wild relative or land race of a variety about which the farmers possess the common knowledge; where farmer means any person who  (i) cultivates crops by cultivating the land himself; or
  109. 109.  (ii) cultivates crop by directly supervising the cultivation of land through any other person; or  (iii) conserves and preserves, severely or jointly, with any person any wild species or traditional varieties or adds value to such wild species or traditional varieties through selection and identification of their useful properties. • “Essentially Derived Variety” as per PPVFR Act, 2001 • “Essentially Derived Variety” is a variety which is predominantly derived from another variety (protected or otherwise) and conforms to the initial variety in all aspects except for the differences which result from the act of derivation, and yet is clearly distinguishable from such initial variety.
  110. 110. • Novelty, distinctiveness, uniformity & stability have been defined in the Protection of Plant Varieties and Farmers’ Rights Act • A) Novelty – Plant variety is novel if at the date of filing of the application for registration for protection, the propagating or harvested material of such variety has not been sold or otherwise disposed of by or with the consent of breeder or his successor for the purpose of exploitation of such variety- • (i) in India earlier than one year or • (ii) outside India , in the case of trees or vines earlier than six years or in any other case, earlier than four years, before the date of filing such application: Provided that a trial of a new variety which has not been sold otherwise disposed of shall not affect the right to protection. Provided further that the fact that on the date of filing the application for registration, propagating or harvested material of such variety has become a matter of common knowledge other than through the aforesaid manner shall not affect the criteria of novelty for such variety.
  111. 111. • B) Distinctiveness – New plant variety will be considered distinct if it is clearly distinguishable by at least one essential characteristic from any other variety whose existence is a matter of common knowledge in any country at the time of filing of the application. • C) Uniformity – New plant variety will pass uniformity test, if subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its essential characteristics. 6 • D) Stability – New plant variety will be considered stable if its essential characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle. Compulsory Plant Variety denomination: After satisfying the above four essential criteria every applicant shall assign a single and distinct denomination to a variety with respect to which he is seeking registration.
  112. 112. • Which plant varieties can not be protected under this Act? • A plant variety which is :-  not capable of identifying such variety; or  consists solely of figures; or  is liable to mislead or to cause confusion concerning the characteristics, value, variety, or the identity of breeder of such variety;  is likely to deceive the public or cause confusion in the public regarding the identity of such variety;  is comprised of nay matter likely to hurt the religious sentiments respectively of any class or section of the citizens of India;  is prohibited for use as a name or emblem for any of the purposes;  is comprised of solely or partly of geographical name.
  113. 113. BIOLOGICAL DIVERSITY ACT, 2002 • A national biodiversity authority has been established by the Biodiversity Act, 2002 to regulate act implementing rules 2004 has been operationalised since coming in to force. Regulating access well as pushing the officially sponsored, documentation of biological resources and traditional practices through people’s diversity registers at the local and data bases at the national levels, respectively. It further probes the extent to which the principles of conservation have realized. Provisions of the Act: • 1. Prohibition on transfer of Indian genetic material outside the country without specific approval of the Indian Government. • 2. Prohibition of anyone claiming an (IPR) such as a patent over biodiversity or related knowledge without permission of Indian Government. • 3. Regulation of collection and use of biodiversity by Indian national while exempting local communities from such restrictions • 4. Measures from sharing of benefits from use of biodiversity including transfer of technology, monitory returns, joint research and development, joint IPR ownership etc.
  114. 114. • 5. Measuring to conserve sustainable use of biological resources including habitat and species protection (EIP) of projects, integration of biodiversity into the plans and policies of various Departments and Sectors. • 6. Provisions for local communities to have a say in the use of their resources and knowledge and to charge fees for this. • 7. Protection of indigenous or tradition laws such as registration of such knowledge. • 8. Regulation of the use of the genetically modified organisms. • 9. Setting up of National, state and local Biodiversity funds to be used to support conservation and benefit sharing. • 10. Setting up of Biodiversity Management committees (BMC) at local village levels. State Biodiversity Boards at state level and National Biodiversity Authority.
  115. 115. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) UNIT-4 (B) MEDICAL TECHNOLOGIES AND FORENSIC SCIENCE
  116. 116. MEDICAL TECHNOLOGIES AND FORENSIC SCIENCE DNA PROFILING • DNA profiling is a technique by which individuals can be identified and compared via their respective DNA profiles. • Within the non-coding regions of an individual’s genome there exists satellite DNA – long stretches of DNA made up of repeating elements called short tandem repeats (STRs • As individuals will likely have different numbers of repeats at a given satellite DNA locus, they will generate unique DNA profiles. DNA profiling is a forensic technique in criminal investigations, comparing criminal suspects' profiles to DNA evidence so as to assess the likelihood of their involvement in the crime. It is also used in parentage testing, to establish immigration eligibility, and in genealogical and medical research. DNA profiling has also been used in the study of animal and plant populations in the fields of zoology, botany, and agriculture.
  117. 117. • DNA profiling can be used in old or unsolved crimes or to identify human remains. The availability of parental DNA samples might allow identification of a body when conventional means (physical appearances, dermatoglyphic fingerprints, dental charts) have been unsuccessful. • Dissimilar DNA profiles will exclude a relationship. Teeth are important evidentiary material in forensic cases, since they are more resistant to post-mortem degradation and extreme environmental conditions. Teeth are also easy to transport and serve as a good source of DNA.
  118. 118. BRAIN MAPPING • Brain mapping attempts to relate the brain's structure to its function, or finding what parts give us certain abilities. For example, what aspect of our brain allows us to be creative or logical? This is called localization of function. It examines how our environment changes our brain's structure by studying, for instance, how the brain changes physically through the learning and aging processes. Brain mapping also examines what goes wrong physically in the brain during mental illnesses and other brain diseases. • Finally, brain mapping aims to give us a thorough picture of our brain's structure. Google Earth shows us satellite images of our planet and zooms in to continents, countries, states, cities, highways, streets and buildings. A complete structural map of our brain might be similar. The Brain Mapping Test is also known as P-300 test. In this test of Brain Mapping the suspect is first interviewed and interrogated find out whether he is concealing any information.
  119. 119. • The activation of brain for the associated memory is carried out by presenting list of words to the subjects. • There are three types of words in the list used for Brain Mapping Test,  Part I consisted of neutral words, which have no direct relationship with the case.  Part II consists of probe words directly related to the case and suspects to elicit concealed information, which all suspects have had opportunity to come to know during the course of events related to the case.  Part III consists of target, which are not part of the first two parts. The words in this part are based on confidential findings which suspect does not know.
  120. 120. NARCO-ANALYSIS • The term Narco-analysis is derived from the Greek word narkç (meaning "anesthesia" or "torpor") and is used to describe a diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, to induce a stupor in which mental elements with strong associated affects come to the surface, where they can be exploited by the therapist. • The term Narco-analysis was coined by Horseley .Narco-analysis poses several questions at the intersection of law, medicine and ethics. Is the procedure for Narco-analysis is violative of the rights against self- incrimination, guaranteed under Article 20 (3) of Constitution? • Constitutional & Legal Provisions on Narco-analysis in India • Like confessions, Narco-analysis tests generally don’t have legal validity as it is made by a semiconscious person are not admissible in court. The court may, however, grant limited admissibility after considering the circumstances under which the test was obtained. Narcoanalysis, brain mapping and lie detector tests against the will of the accused would be violative of Article 20 (3) of the Constitution. The main provision regarding crime investigation and trial in the Indian Constitution is Art. 20(3).
  121. 121. • It deals with the privilege against self-incrimination. The privilege against `self-incrimination is a fundamental canon of Common law criminal jurisprudence. Art. 20(3) which embodies this privilege says, “No person accused of any offence shall be compelled to be a witness against himself”. Subjecting the accused to undergo the test, as has been done by the investigative agencies in India, is considered by many as a blatant violation of Art.20 (3) of Constitution. • The application of Narco-analysis test involves the fundamental question pertaining to judicial matters and also to Human Rights. The legal position of applying this technique as an investigative aid raises genuine issues like encroachment of an individual’s rights, liberties and freedom.
  122. 122. • In case of State Bombay v. Kathikalu, it was held that it must be shown that the accused was compelled to make statement likely to be incriminative of himself. Compulsion means duress, which includes threatening, beating or imprisonment of wife, parent or child of person. Thus where the accused makes a confession without any inducement, threat or promise art 20(3) does not apply. Thus, the privilege against self- incrimination enables the maintenance of human privacy and observance of civilized standards in the enforcement of criminal justice