IT Act in India: Still elusive and unclear

It has become a hubbub of legal services. So much so, that many in the legal community are perceiving the rules of the Act as a profitable source of income, with legal service charges amounting from $200 to $400 for an hour's advice.

This has been more so after a recent case was slapped on Amit Parsai and Kapil Juneja, partners of a Web hosting company called Software Solutions Inc.

Charged with Section 66 of the IT Act, 2000 (which deals with hacking computer systems), that is treated as a criminal offence, the duo was arrested for allegedly hacking a Web site.

In actuality, the site was blocked for non-payment of the rental fee -- for hosting and maintenance of the site. The Web hosting company had posted a message on the site that said it (the site) was blocked due to non-payment of bills. But this 'defacement' of the site has amounted to hacking. However, though Parsai and Juneja have been bailed out, the case is presently subjudice.

The above incident has been a classic example that brought out the apprehensions of the Web-hosting companies in India, who are still unclear about the consequences of the IT Act and are looking for a more secure way of doing business.

Today, most companies are taking extra precautions in dealing with their clients legally. If yesterday, a wrong case was slapped because of non-payment of bills, tomorrow it could be on some other pretext.

Better Safe than Section 66
Net4India, a Delhi-based A-class Internet service provider and Web hosting company has two in-house lawyers that include co-founder and chief operating officer Jasjit Singh Sawhney, and a couple of consultant lawyers to look after the whole operation of the company.

"Although we are glad that India now has an IT Act, Section 66 of the Act is not very clear. Therefore in our dealings with the clients we make sure to send reminders to companies that do not pay up, give a small grace period and then shut down the site for non-payment. This is not an offence under Section 66," explained Sawhney of Net4India.

Net4India is not the only company to do so. Cautious about what tomorrow brings, there are other Web hosting companies such as Dotcom Services, Olive E-business, Palcom, AllIndiaNet and Palcom, who are restructuring contract agreements to make them legally correct.

"Now we are insisting on stronger contracts which can pass such liabilities on the customers," said Vivek Jalan of Delhi-based Dotcom Services. Web hosting companies like DelhiNet, the Delhi division of AllIndiaNet, have created a new set of contract rules for its clients to ensure legal security against any non-payment of bill.

The company is spending about Rs 2.5 lakh on legal services annually. "We cannot afford to go behind bars simply because the police is not very clear about the IT Act," claims G P Singh, president of DelhiNet.

However, the fact is that these are growing to be the accepted rates in the Delhi circle for Web hosting companies.

Like it is with Section 420 of the Indian Penal Code (which is for cheating), Section 66 is so vast and deals with so many clauses that it is now being treated as the mother of all Sections in the IT Act. "The Section is too vast. And the white collared entrepreneurs of the new economy are more self-conscious and prefer avoid unnecessary police harassments," says Vivek Sood, criminal and cyber law expert, and Advocate with the Supreme Court.

In fact, that is one major issue most of the IT community is skeptical about. Most laws in the IT Act are treated as cognisable / criminal offences and they are rightly treated so because hacking is no small crime. Therefore, harassment starts the moment a case is registered.

Lack of guidelines
Apart from the rule that these cases have to be dealt with by no officer below the rank of Deputy Superintendant of Police, the police department has not received any other guidelines from the government.

Again, it is easy to blame the police departments and get way with it, but they cannot surely help it much if their idea of IT is basic omputerisation in their respective departments. This does not help much since our police department is not well versed with IT, let alone the IT Act.

Although the IT Act may seem quite clear in itself, unless guidelines are created, there is a very thin line dividing actual cybercrime from something else like disconnection. "The police should have guidelines to deal with the cybercrimes for it is too new a subject in India", explains Pratibha Singh, an intellectual property lawyer.

Cyberlaw: still elusive
Not only the police, even the lawyers are not very well versed with the IT Act and its repercussions. Simply because most cases that are dealt with in the IT Act, are mostly related to Patent and Intellectual Property (IP), and India does not have a dedicated IP law for IT.

So far they were mostly treated as litigations in the civil court. It is only now that many of the sections bear criminal offences and are treated with some seriousness. "Moreover, after a Bachelors' degree in Law (LLB) there is no formal course on cyberlaw that one can pursue," said Pavan Duggal, cyber law expert and advocate with the Supreme Court.

The University Grants Commission, which looks after the country's higher education programme is yet to implement a formal course on IT for law graduates to specialise in.

Hence, we do not have many active IP Law firms either, baring a few in the major metros. And these firms have mostly been involved in dealing with international clients as they also like Indian software outsourcing firms form cheap and skilled English speaking labour for the Western world.

"Since we are mostly involved with international clients, we prefer to charge in dollars and our rates are uniform universally. The rates range from $200 to $400 on an hourly basis," explains Hariharan Subramaniam, intellectual property lawyer.

Moreover, he feels that that since they are already well equipped in handling IT cases for their international clients, it becomes easier for them to handle the new cases on domain disputes and non-payment of bills or any such issues.

"We have handled so many cases that now we can cast many opinions just off the shelf to the Indian IT companies," he says. "It has led to the commercial ramification of a court's decision."

While most Web hosting companies are altering their contract of services and are hiring legal advisors as a precautionary step, it has indeed created interest among the legal community to understand IT and specialise in cyber laws.