Monday, November 16, 2009

Liability of Cyber Café owners increased by the IT Amendment Act 2008, which enforced from October 27, 2009.

After the introduction of the IT Amendment Act 2008 the responsibilities of Cyber Café owners have increased to a greater extent. In the event they fail to maintain a "Due Diligence" plan for the Cyber Café, they run the risk of being accused directly for such crimes  or for "Vicarious Liabilities" under different sections of ITA 2008 such as Section 67C, Sec 69,69A,69B etc. Though ITA 2008 has been notified with effect from October 27, 2009, the rules regarding Cyber Café regulations have not been notified separately by the Government. It is expected that specific rules would be notified before December 2009 in this regard.

Cyber Café owners as a category are therefore worried because they are caught in the crossfire between the terrorists and naxalites on the one side and the State on the other side.

The terror mail threat received by the Sri Lankan Cricket team before the Ahmadabad Test has once again brought focus on the Cyber Cafes. The mail was sent from a Cyber Café in Chhattisgarh and promptly the Police have arrested the Cyber Café owner. For records, Police are happy that an arrest has been made but it is unlikely to lead to the finding of the real culprit since the Cyber Café may not be maintaining proper records. This is a typical scenario in respect of all crimes of this nature where a Cyber Café is used for sending e-mails by terrorists or pranksters. Though the arrest may be faulted under the sections relating to say Section 66A (sending threatening e-mails) or Section 66F (Cyber Terrorism), arrest can be justified when read along with Section 85 and  a failure of defense under Section 79.

It is advised to Chhattisgarh cyber café owners to immediately organize themselves into a coordinated group, introduce voluntary compliance measures and save their fraternity from being arrested whenever e-mails are sent from their network. They need to draw a "ITA 2008 compliance over the Cyber Café network to protect themselves and also simultaneously assist the Police in investigation of such cases. In the meantime, Cyber Cafes need to follow "Due Diligence" in a manner that is considered as "What a prudent man under similar circumstances" would do.

In Bangalore, recently the Police started promoting software for Cyber Cafes which is supposed to maintain Visitor's registers as per the Karnataka Cyber Café regulations notified in 2004. Though this is touted as ITA 2008 compliant, and Cyber Café owners are being urged by the Police to install the software, it is necessary for the Cyber Café owners to realize that this software by itself may not be fully compliant with ITA 2008 prescriptions and the Cyber Café owners may need to supplement the software with other initiatives.

This is the need of the hour for sustaining the business of Cyber Cafes in India as we can neither prevent criminals from using the Cyber Café network nor the Police from blaming the Cyber Café owners for negligence.

Dr.Tabrez Ahmad,
Associate Professor of Law,
KIIT University, Bhubaneswar, India,
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