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Tort Law In Context Of Information Technology: Cyber Trespass And Trespass To Chattels In IT Sector Under Cyber Torts

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The Internet is a vast space that has removed the physical boundaries of the world and made it into a small village with global interactions and information sharing on a significant level. Activities like online banking and internet services, social media enable a larger group to interact with and avail services. ‘With more people, more services, and more commerce online, the number and the severity of legal conflicts on the Net will increase. Internet torts will also develop as more enhanced people increase online. Variations in net demographics are pointing to an expanded interest for law and order in Cyberspace as well’. In a vast country like India with growing cyber trends, there have been numerous changes with the sphere of cyber law and an urgent need to regulate it. There have been revised cyber laws in the country over the past years, though the concept of ‘cybercrime’ is yet to be defined by the legislation of our country (India) as it is a comprehensive concept. However, putting it is simply a crime committed using a computer or computer data can be defined as a cybercrime. The Indian parliament on October 17 passed the Information Technology Act, 2000, which is the first law in India dealing with cybercrime. The first conviction under cybercrime was of the Sony.Sambandh.Com case wherein May 2002 someone logged in to the company’s website under the name of Barbara Campo and placed an order and paid through a credit card. This transaction was processed and was to be delivered to Arif Azim later it was brought to the knowledge of the company that it was a fraudulent transaction. After this the company filed a complaint under the Central Bureau of investigation regarding online cheating and a case was registered under section 418, 419 and 420 of the Indian Penal Code since it was the first conviction, the accused though guilty was let go on probation year. Similarly, in another case, Register.com Inc v. Verio, Inc which also occurred in 2000 Register.com Inc sued Verio, Inc as it used a spider to scan the database for recent registrants and their contact information. Then used the obtained information to send targeted sales pitches for its ISP and web-hosting services, which were in a primary fight with some of the same services offered by Register.com. The court pronounced that Register.com’s terms of service did not check spiders, but that the prosecution had put Verio on a note that its spiders were unpopular. Nonetheless, the court found that ‘evidence of a mere possessory interference is sufficient to demonstrate the quantum of harm necessary to establish a claim for trespass to chattels.’ These cases can be used as a way to understand cybercrime and how it is dealt with in different countries (here India and the United States). Comparison of Indian Legislation with that of other countries: The Indian Cyberspace is governed by the single legislation Information Technology Act 2000 and the Information Technology Amendment Act 2008. In the United Nations Computer crimes are dealt with under the Computer Fraud, and Abuse Act (CFAA), the Electronic Communications Privacy Act (ECPA) establishes privacy protection data for data and electronic communications that are in storage or transit. Sections 1028, 1028A, 1029, 2701 are some of the examples for cyber law in America.

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The Computer Misuse Act 1990 deals with any unauthorized act concerning a computer that a person knows to be unauthorized with the intent of reducing the performance of any computer, blocking or impeding access to any program or the data or enabling any of the above. The fraud act of 2006 and the Data Protection act 2018 are some examples of cyber law in the United Kingdom.[5] If we compare the laws of the above countries, we can conclude that the Indian legislation still has an enormous scope of improvement and better laws that will be able to cover the extensive domain of Cyberspace. Some of the known limitations are that it does not cover infringement of copyright, taxation. Cyber Law is a vast domain, will require a lot of research and data; hence, in this essay, we will be covering on the topics of Cyber Trespass and Trespass to chattels. Cyber Trespass as defined in the book Cyber Crime: Law and Practice ‘Cyber Trespass: It means to access someone’s computer without the right authorization of the owner and does not disturb, alter, misuse, or damage data or system by using wireless internet connection.’ ‘How Does A Person Trespass in Cyberspace? Courts have been using the term ‘cyber trespass’ to order injunctions against activity on the Internet for several years, but no court has yet defined exactly what it means. ‘I wish some court would either bless this concept or throw it out,’ says Nels Lippert, vice chairman of the intellectual property department for Hale and Dorr in New York City. ‘We just need one clear-cut decision, so we can have a modicum of direction in how to advise our clients.’ Now, it looks as if a couple of court cases could help establish the limits of the tort of cyber Trespass, used most often to block bulk email known as spam’. This journal article by Jason Krause puts our thoughts into words about how our legislation hasn’t yet given a definition to cyber Trespass it is present in cases like; United States V Morris, Here the Defendant Morris was charged under the Computer Fraud and Abuse Act of 1986 for launching a ‘worm’ on the Internet to prove the inadequacies of the computer networks countrywide. On application, he explains that the government displeased to prove that he intended every element of the offence. The Rule of law, in this case, was that the intent component of the Computer Fraud and Abuse Act of 1986, connects only to the entrance factor. The issue thereby arose that must the government not only prove that the Defendant intended to access the countrywide computers but also that he intended to prevent authorized use of the computer’s information and hence caused loss. The punishment was declared on the ground that the network fraud and abuse act of 1986 pertains to anyone who willfully accesses a Federal interest computer without authorization and changes or damages or destroys the information or prevents authorized use of any such computer or information and thereby causes loss. The earlier legislation provides that the intent element can be applied to the access element. Hence the Defendant’s conviction stood because it was proved beyond all reasonable doubts that the Defendant intentionally accessed the computer network, thus amounting to Trespass.

In another case, we can reference State Vs Rajesh Gosain&Anr. Moreover, Vijay Govind vs State &Anr, in this case of the claimant, that FIR No. 154/2011 came to be enrolled in the accusation of Mr Vijay Govind Saxena, General Manager (HR), M/s Vogueserv International Pvt. Ltd. Alleging that their ex-employees, namely Mr Rajesh Gosain, Me. Alok Gupta, Mr Abhishek Arvind, and Mr Mohit Kothiwal had institutionalized fraud of data by way of unapproved admittance to the computer system, network and emails of the company and also took wrongful mastery of delicate and classified education entrusted to them in their capacity. It was also alleged that they diverted their business from Vogueserv International Pvt. Ltd. to their newly formed company; this was a clear case of cyber Trespass. Through these cases, we can, to a certain extent, define cyber Trespass as defined Cyber Crime: Law and practice. Another case we can refer is from Singapore, that is the case of Public Prosecutor v. Muhammad Nuzaihan Bin Kamal Luddin where the case took place in the high court of Singapore here the Defendant was accused of gaining unauthorized access to the proxy server to the cable networks so that he could download files from the Internet. The act of the Defendant can come under the purview of cyber Trespass. All these cases which are obtained from different countries (namely United States, India, Singapore) deal with cases of cyber Trespass, though the jurisdiction and legislation of these cases are inherently different, we can trace that the verdict passed is quite similar. In the first case trespass was proved by an intent element and intentional access, in the second case trespass was done by the unauthorized access into the company and misusing sensitive, confidential data, and finally in the third case unauthorized access into the proxy server and downloading files for personal use amounted to Trespass. Some different cases on Trespass are iPhone Application Litig ‘Here the plaintiffs asserted that Apple’s practice of using iDevices to retain location history files violated the CFAA. Apple stated that the plaintiff did not prove that Apple had entered into their devices with unauthorized access. The court agreed with the Defendant and claimed against the Defendant violating CFAA was dismissed. In the said case where the plaintiff lost the case, we can establish that it was necessary to prove unauthorized access to prove cyber Trespass. ‘Many computers have a multitude of spyware programs running in the background, often without the knowledge of the computer’s user. In addition to invading your privacy, spyware can cause a whole lot of other problems. The multitude of spyware that can infiltrate a user’s computer can limit the processing time, memory and bandwidth available for other programs and can cause one’s computer to slow down and in some cases become nearly unusable. According to Consumer Reports, one-third of Net users have been afflicted by spyware. Often spyware has an additional insidious purpose. Some spyware uses your computer to send spam email on behalf of third parties. Some spyware changes your home page, or the search results you see, behind your back.

Software that some people characterize as spyware generates ads that are displayed as users surf the Web or use other programs’ while reading the above passage on the question to ponder upon is the entry of spyware programs into the computer amounts to Trespass? According to the data collected and analyzed in this essay trespass can be established by the fact that unauthorized or unlawful entry, in this case, it is of the spyware’s amounts to Trespass and since it infiltrates the data the facts are further in favour of proving that it is Cyber Trespass so in cases of spyware infiltration these facts need to be kept in mind. Now let us briefly further dwell into another field under cybercrimes, i.e. Trespass to Chattels. Trespass to chattels or Trespass to assets or Trespass to private property is defined as ‘intentional interference with the ownership of personal property… proximately causing injury.’ while initially a solution for the asportation of personal property, the tort rose to consolidate any obstruction with the intimate property of another in some jurisdiction, such as the United Kingdom, Trespass to chattels has been ordered to define the scope of the remedy clearly; in most jurisdiction, Trespass to chattels remains a purely common law remedy, the scope of which varies by jurisdiction. For this, we can refer to the case of CompuServe Inc. v. Cyber Promotions, where the Defendant distributed email advertisements to the plaintiff’s subscribers. Despite the warning, the Defendant continued. The plaintiff employed measures to block the Defendant’s messages, but these measures were frequently circumvented. The plaintiff then obtained a ‘temporary restraining order’ to block the messages and then sought a preliminary injunction to expand the duration of the blockage. The Defendant argued that the plaintiff’s computer equipment and services were not dispossessed and that this prevented the issuance of such an injunction. Here the issue was that if the plaintiff is entitled to a preliminary injunction to block the Defendant’s messages. So it was held that the preliminary injunction could be granted and such a trespass may also be obtained when the chattel is broken or depreciated, the purchaser is deprived of its use for a substantial period, or bodily harm results from the interference with the chattel. Another case we can refer to is Thrifty- Tel, Inc. v. Bezenek. Where defendant customers appealed the judgment of the superior court of California, in favour of the plaintiff telephone company, claiming that objectives of the industry for cheating and conversion did not lie on these facts, and the plaintiff failed to alleviate and determine its damages. They also explained that the hearing court blundered in calculating damages, and that impeded or restricted their losses for the acts of their children. The plaintiff company administered services to respondent customers. Defendants’ minor children used a home machine to obtain entry to the plaintiff’s classified code, causing damage. The plaintiff knew of hacking but did not contact defendants and instead filed a suit for ‘damages for conversion, fraud, and the value of its services.’ The trial court granted damages to the plaintiff’s tariff rate schedule, and the defendants appealed. .The court held that the plaintiff proved Trespass to chattel and the Defendant was liable.

The court determined plaintiff had a duty to alleviate its damages, and could not retrieve for avoidable disasters, and the lower court misjudged in awarding damages based on the tariff instead of actual damages. Trespass to chattels, an old and rarely used common law tort, provides redress for unauthorized use of or intermeddling with another’s personal property. Chattel, or personal property, is defined as physical, tangible property and is distinguished from both real property and intellectual property. ‘Trespass’ has likewise been defined as a substantial interference with property, requiring physical contact with the property as a threshold matter. To be considered Trespass, a user must be intentional, unauthorized and substantial. A ‘substantial’ use involves genuine harm or a grave infringement of rights — an interference with the chattel which confiscates the owner, harms the chattel, hinders with the owner’s use of the chattel in a material way or for a substantial period of time, or causes bodily harm these facts further clear our doubts on the topic of Trespass to chattels. While we are on this topic, we start to wonder about the damages provided for this tort; generally, both damages and injunctive relief may be provided now apart from damages we also broach upon the topic of defences to the tort; one of them could be consent from the owner that can be revoked. On the last note, we shall review the case pf eBay v. Bidder’s Edge, where the Defendant unlawfully compiled data from the plaintiff and presented it as a personalized catalogue. The Defendant tried to prove that evidence undercut those harms, but the court did not allow them, it held that sufficiently substantial harm was enough to meet requirements for Trespass to chattels. Though Trespass to chattels and cyber Trespass may seem similar it cannot be used interchangeably, and there are many more changes in this domain of law which will make the lines of definition between these two torts more transparent. It is quoting Mark. A Lemley ‘The Cyberspace As Place metaphor, can be valuable. Thinking about the Internet by reference to the physical world is fine if, for no other reason than that, courts must apply a host of physical-world laws to the Internet. However, the blind application of the metaphor to reach a particular result obscures more than it illumines. The metaphor will serve its purpose only if we understand its limitations – how the Internet is not like the physical world. Courts must also understand that metaphor is no substitute for legal analysis.’

Bibliography:

  1. Aron Mefford, Symposium: The Public’s Health in the Global Era: Challenges, Responses, and Responsibilities, Vol.5 No.1 , pp. 211, 212 ( 1997) Keren Livneh& Jacob Reed &Brian Jebb& Kurt Wolfe, USA: Cyber trespass 2019, Global Leader Group (sept.19, 2019, 5:00pm)(https://iclg.com/practice-areas/cybersecurity-laws-and-regulations/usa
  2. Nigel Parker& Alexandra Rendell, England and Whales: Cybertrespass 2019, Global Leader Group ((sept.19,2019,5:00pm)https://iclg.com/practice-areas/cybersecurity-laws-and-regulations/england-and-wales
  3. JASON KRAUSE, Crossing A Digital Line: Concept Of ‘Cybertrespass’ Faces Two Court Challenges, Vol89, No. 3 p. 18 (1 page), 18 (2003)
  4. State Vs Rajesh Gosain&Anr. AND Vijay Govind vs. State & Anr,2011,SCC Online Del 592 ,2014 Public Prosecutor v. Muhammad Nuzaihan Bin Kamal Luddin, 1999,3 SLR 653 Brad Slutsky& Shelia Baran, Just a tad intrusive? Spyware and the internet, Vol. 14, No.2pp. 33(November/December 2004), Ripudaman Singh Tanwar, Trespass, LegalServiceIndia.com, (sept.19,2019,5:00pm) Laura Quilter, The continuing expansion of cyberspace: Trespass to chattels, Vol.17 No.1 pp 421, 424-425 (2002) Ebay v. Bidder’s Edge, 100 F. Supp. 2d 1058 (2000) Mark a. Lemley, Place and Cyberspace, Vol. 91, No.2, pp. 521, 542 (2003)
01 February 2021

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