Cyber Laws for CxO, an e News letter from Naavi, February 2010

We intend using this section of the news letter to answer the Cyber Law related queries raised by our readers. This being an inaugural issue, we don’t have any questions to be answered.

We hope that this would be one of the most vibrant sections of this news letter which may generate illuminating debates which would be of use to one and all.

We appreciate if queries are raised by persons indicating their Name, Occupation and Contact details. We however don’t want to restrain the readers from raising questions without revealing their identity. Such readers may therefore send the questions as “Anonymous” in which case even their e-mail ID would not be provided on the news letter.

All questions may however be sent by e-mail to naavi@in.com by e-mail with the subject line containing “Cyber Laws for CxOs”.

Editor

How Does the system of Adjudication work?

Victim identifies a loss on account of a contravention of ITA 2008

Applies for adjudication to the adjudicator of appropriate jurisdiction along with the requisite fee and available evidence

Adjudicator verifies contravention based on prima-facie evidence and if necessary orders the Police to investigate and report to him

On confirmation of the contravention and identification of the accused, adjudicator sends notice to him demanding reply.

On receipt of the reply from the accused, adjudicator will arrange hearing as required and arrive at his assessment of whether the contravention has occurred, whether it is attributable to the accused and what is the fair compensation payable to the applicant and awards appropriate compensation.

If the offender does not pay, victim may invoke a request for recovery with the adjudicator who will apply revenue recovery process to get compliance of his order.

If either party is aggrieved, they may prefer an appeal to CRAT .

What is the Procedure for application

Use the format of the application enclosed with the notification of 17^th March 2003. use professional assistance if required.

Calculate the adjudication fee based on the following table and take a DD favouring “Adjudicating Officer Information Technology Act, …. (Name of State or Union Territory)

Wait for further information from the adjudicating officer

Reply any queries received from the adjudicator

Attend hearings as required

Receive order and wait for compliance from the accused

Appeal to CAT if required after getting certified copies.

If offender neither appeals further nor complies, victim may appeal to Adjudicator for assistance in recovery of the awarded compensation.

Table of Adjudication Fees

Fee upto Rs 10,000

10% ad valorem rounded of to nearest next hundred

From 10001 to Rs.50000

Rs. 1000 plus 5% of the amount exceeding Rs.10,000 rounded of to nearest next hundred

From Rs.50001 to Rs.100000

Rs 3000 plus 4% of the amount exceeding 50000 rounded off to the nearest next hundred

More than Rs. 100000

Rs 5000 plus 2% of the amount exceeding 100000 rounded off to the nearest next hundred

Plus: Fee for every application: Rs 50

Eg: For compensation of Rs 2 lakhs, total fee would be Rs 7050/-

What is the Procedure for Respondent

Study the Adjudicator’s notice and the accompanying complaint information

Take professional assistance if required

Respond within the specified time as you deem fit. Remember that if you donot respond, the adjudicator may take an ex-parte decision.

Attend hearing and present your case as required.

On receipt of a copy of the award, respond appropriately.. Pay as required or appeal to CAT after obtaining a copy of the order.

I have only the e-mail/Web address of the accused. I donot know his name and physical address. Can I still apply for the adjudication?

Yes. Provide whatever evidence is in your hands and co-operate with the adjudicator if he orders an investigation for more information. Preferably file a complaint with the Police also though this is not mandatory for going for adjudication.

Is it necessary to appoint a lawyer to assist me?

It is not mandatory that you should be represented only by a lawyer registered for practice. In most cases you may send your complaint yourself directly. If required take the assistance of a professional who is conversant with Cyber Laws and Technology whether he is practicing or not for preparing the application as well as to represent you or accompany you during the hearings.

Can I present witnesses during the hearing?

Yes, you can present affidavits and also witnesses in person as may be required.

Where is the Address of the Adjudicator available?

Adjudicator is the IT Secretary of the State where the adjudication is preferred. List of IT secretaries as on date can be obtained at Naavi.org

The list contains the phone numbers and e-mail addresses. Obtain the physical address by contacting the office.

Complaint may be filed with the adjudicator of the state within the boundaries of which at least one Computer used for commission of contravention is situated. It could be the state where the victim or the accused or the criminal’s facilities are located.

Who will bear the cost of adjudication?

At the time of application, the applicant will bear the cost by way of the fees. He can claim damages inclusive of the costs and if the adjudicator is satisfied, the order may include costs of the process as well as other associate costs. Adjudicator has the discretion not to allow the costs if he so desires.

Can I withdraw the Adjudication Application?

In case you want to withdraw the application after filing, you can do so explaining the reasons to the Adjudicator.

The fees already paid may not be returned.

If the adjudicator comes to the conclusion that the application was frivolous, he may also impose a penalty on the applicant himself and order it to be paid to the accused.

If you have come to a compromise with the accused, a joint request may be made to the adjudicator advising the terms of the compromise arrived at and the adjudicator may take it as a “Compounding” request and order accordingly.

Appeal to CAT would not be permitted in case of an adjudicator’s order following a compromise. Adjudication fee may not be returned.

Can I bring an Injunction for an Adjudication Proceeding filed against me?

According to Section 61, no Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an adjudicating officer appointed under this Act or the Cyber Appellate Tribunal constituted under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

Hence the only remedy for the respondent is to apply to the Adjudicator himself for dropping of the adjudication and appeal if he goes ahead with his order. Other Courts cannot interfere. (Except when the claim is over Rs 5 crores when the Adjudicator does not have the jurisdiction in the first place).

The appeal lies with CAT and not with the High Court at this stage. Appeal to CAT cannot made until the adjudicator completes the process and gives his award.

What should the applicant do if the Adjudicator does not respond to his application or keeps the issue pending?

The exact procedure to be adopted in such a case is not specified at present in the rule. The suggested remedy is to make an appeal to the CRAT stating that the order of the Adjudicator is not enclosed since the adjudication process is not complete and the remedy sought is to direct the adjudicator for expeditiously completing the process.

I have received an excess Bill from my service provider due to my Wireless modem being misused. Should I go to the Consumer Forum?

No. Misuse of wireless modem may indicate unauthorized access to the computer system and is covered by Section 66 as an offence and eligible for compensation under Section 43. Hence an adjudication application should be filed and other forums donot have jurisdiction due to Sec 61.

Manager of my online broker has executed unauthorized share transactions on my account. Should I seek arbitration as per the terms of our agreement ?

If the allegation is against the broking firm about the commission of an offence, the arbitration agreement may become infructuous. It is preferable to seek adjudication if any contravention of ITA 2008 can be proved such as unauthorized modification of an order placed through e-mail or an online application.

Is it mandatory to register an FIR before approaching the Adjudicator?

Not necessary. It is however desirable so that the adjudicaor can pick up some assistance from the investigations conducted by the Police. The adjudicator can also order the Police to investigate and report to him the findings.

P.S: Views expressed here may be considered as suggestive and other experts may have differing opinions. Answers given here are for academic clarification and debate and do not constitute legal advice.

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