The Gurgaon BPO fraud has created an embarrassing situation for Infinity e-Search, the company in which Mr Karan Bahree was employed.
A British newspaper had reported that one of its undercover reporters had purchased personal information of 1,000 British customers from an Indian call-center employee. However, the employee of Infinity eSearch, a New Delhi-based web designing company, who was reportedly involved in the case has denied any wrongdoing. The company has also said that it had nothing to do with the incident.
In the instant case the journalist used an intermediary, offered a job, requested for a presentation on a CD and later claimed that the CD contained some confidential data. The fact that the CD contained such data is itself not substantiated by the journalist.
In this sort of a situation we can only say that the journalist has used "Bribery" to induce a "Out of normal behavior" of an employee. This is not observation of a fact but creating a factual incident by intervention. Investigation is still on in this matter.
Ref: Talwant Singh
Addl. District & Sessions Judge, Delhi
Monday, July 27, 2009
Case study cyber law - Nasscom vs. Ajay Sood & Others
In a landmark judgment in the case of National Association of Software and Service Companies vs Ajay Sood & Others, delivered in March, ‘05, the Delhi High Court declared `phishing’ on the internet to be an illegal act, entailing an injunction and recovery of damages.
Elaborating on the concept of ‘phishing’, in order to lay down a precedent in India, the court stated that it is a form of internet fraud where a person pretends to be a legitimate association, such as a bank or an insurance company in order to extract personal data from a customer such as access codes, passwords, etc. Personal data so collected by misrepresenting the identity of the legitimate party is commonly used for the collecting party’s advantage. court also stated, by way of an example, that typical phishing scams involve persons who pretend to represent online banks and siphon cash from e-banking accounts after conning consumers into handing over confidential banking details.
The Delhi HC stated that even though there is no specific legislation in India to penalise phishing, it held phishing to be an illegal act by defining it under Indian law as “a misrepresentation made in the course of trade leading to confusion as to the source and origin of the e-mail causing immense harm not only to the consumer but even to the person whose name, identity or password is misused.” The court held the act of phishing as passing off and tarnishing the plaintiff’s image.
The plaintiff in this case was the National Association of Software and Service Companies (Nasscom), India’s premier software association. The defendants were operating a placement agency involved in head-hunting and recruitment. In order to obtain personal data, which they could use for purposes of headhunting, the defendants composed and sent e-mails to third parties in the name of Nasscom.
The high court recognised the trademark rights of the plaintiff and passed an ex-parte adinterim injunction restraining the defendants from using the trade name or any other name deceptively similar to Nasscom. The court further restrained the defendants from holding themselves out as being associates or a part of Nasscom.
The court appointed a commission to conduct a search at the defendants’ premises. Two hard disks of the computers from which the fraudulent e-mails were sent by the defendants to various parties were taken into custody by the local commissioner appointed by the court.
The offending e-mails were then downloaded from the hard disks and presented as evidence in court. During the progress of the case, it became clear that the defendants in whose names the offending e-mails were sent were fictitious identities created by an employee on defendants’ instructions, to avoid recognition and legal action. On discovery of this fraudulent act, the fictitious names were deleted from the array of parties as defendants in the case.
Subsequently, the defendants admitted their illegal acts and the parties settled the matter through the recording of a compromise in the suit proceedings. According to the terms of compromise, the defendants agreed to pay a sum of Rs1.6 million to the plaintiff as damages for violation of the plaintiff’s trademark rights. The court also ordered the hard disks seized from the defendants’ premises to be handed over to the plaintiff who would be the owner of the hard disks.
This case achieves clear milestones: It brings the act of “phishing” into the ambit of Indian laws even in the absence of specific legislation; It clears the isconception that there is no “damages culture” in India for violation of IP rights; This case reaffirms IP owners’ faith in the Indian judicial system’s ability and willingness to protect intangible property rights and send a strong message to IP owners that they can do business in India without sacrificing their IP rights.
Ref: Talwant Singh
Addl. District & Sessions Judge, Delhi
Elaborating on the concept of ‘phishing’, in order to lay down a precedent in India, the court stated that it is a form of internet fraud where a person pretends to be a legitimate association, such as a bank or an insurance company in order to extract personal data from a customer such as access codes, passwords, etc. Personal data so collected by misrepresenting the identity of the legitimate party is commonly used for the collecting party’s advantage. court also stated, by way of an example, that typical phishing scams involve persons who pretend to represent online banks and siphon cash from e-banking accounts after conning consumers into handing over confidential banking details.
The Delhi HC stated that even though there is no specific legislation in India to penalise phishing, it held phishing to be an illegal act by defining it under Indian law as “a misrepresentation made in the course of trade leading to confusion as to the source and origin of the e-mail causing immense harm not only to the consumer but even to the person whose name, identity or password is misused.” The court held the act of phishing as passing off and tarnishing the plaintiff’s image.
The plaintiff in this case was the National Association of Software and Service Companies (Nasscom), India’s premier software association. The defendants were operating a placement agency involved in head-hunting and recruitment. In order to obtain personal data, which they could use for purposes of headhunting, the defendants composed and sent e-mails to third parties in the name of Nasscom.
The high court recognised the trademark rights of the plaintiff and passed an ex-parte adinterim injunction restraining the defendants from using the trade name or any other name deceptively similar to Nasscom. The court further restrained the defendants from holding themselves out as being associates or a part of Nasscom.
The court appointed a commission to conduct a search at the defendants’ premises. Two hard disks of the computers from which the fraudulent e-mails were sent by the defendants to various parties were taken into custody by the local commissioner appointed by the court.
The offending e-mails were then downloaded from the hard disks and presented as evidence in court. During the progress of the case, it became clear that the defendants in whose names the offending e-mails were sent were fictitious identities created by an employee on defendants’ instructions, to avoid recognition and legal action. On discovery of this fraudulent act, the fictitious names were deleted from the array of parties as defendants in the case.
Subsequently, the defendants admitted their illegal acts and the parties settled the matter through the recording of a compromise in the suit proceedings. According to the terms of compromise, the defendants agreed to pay a sum of Rs1.6 million to the plaintiff as damages for violation of the plaintiff’s trademark rights. The court also ordered the hard disks seized from the defendants’ premises to be handed over to the plaintiff who would be the owner of the hard disks.
This case achieves clear milestones: It brings the act of “phishing” into the ambit of Indian laws even in the absence of specific legislation; It clears the isconception that there is no “damages culture” in India for violation of IP rights; This case reaffirms IP owners’ faith in the Indian judicial system’s ability and willingness to protect intangible property rights and send a strong message to IP owners that they can do business in India without sacrificing their IP rights.
Ref: Talwant Singh
Addl. District & Sessions Judge, Delhi
Case study cyber law - SONY.SAMBANDH.COM CASE
India saw its first cybercrime conviction recently. It all began after a complaint was filed by Sony India Private Ltd, which runs a website called www.sony- ambandh.com, targeting Non Resident Indians. The website enables NRIs to send Sony products to their friends and relatives in India after they pay for it online. The company undertakes to deliver the products to the concerned recipients. In May 2002, someone logged onto the website under the identity of Barbara Campa and ordered a Sony Colour Television set and a cordless head phone.
She gave her credit card number for payment and requested that the products be delivered to Arif Azim in Noida. The payment was duly cleared by the credit card agency and the transaction processed. After following the relevant procedures of due diligence and checking, the company delivered the items to Arif Azim. At the time of delivery, the company took digital photographs showing the delivery being accepted by Arif Azim.
The transaction closed at that, but after one and a half months the credit card agency informed the company that this was an unauthorized transaction as the real owner had denied having made the purchase.
The company lodged a complaint for online cheating at the Central Bureau of Investigation which registered a case under Section 418, 419 and 420 of the Indian Penal Code.
The matter was investigated into and Arif Azim was arrested. Investigations revealed that Arif Azim, while working at a call centre in Noida gained access to the credit card number of an American national which he misused on the company’s site.The CBI recovered the colour television and the cordless head phone.
In this matter, the CBI had evidence to prove their case and so the accused admitted his guilt. The court convicted Arif Azim under Section 418, 419 and 420 of the Indian Penal Code — this being the first time that a cybercrime has been convicted.
The court, however, felt that as the accused was a young boy of 24 years and a first-time convict, a lenient view needed to be taken. The court therefore released the accused on probation for one year.
The judgment is of immense significance for the entire nation. Besides being the first conviction in a cybercrime matter, it has shown that the the Indian Penal Code can be effectively applied to certain categories of cyber crimes which are not covered under the Information Technology Act 2000. Secondly, a judgment of this sort sends out a clear message to all that the law cannot be taken for a ride.
Ref: Talwant Singh
Addl. District & Sessions Judge, Delhi
She gave her credit card number for payment and requested that the products be delivered to Arif Azim in Noida. The payment was duly cleared by the credit card agency and the transaction processed. After following the relevant procedures of due diligence and checking, the company delivered the items to Arif Azim. At the time of delivery, the company took digital photographs showing the delivery being accepted by Arif Azim.
The transaction closed at that, but after one and a half months the credit card agency informed the company that this was an unauthorized transaction as the real owner had denied having made the purchase.
The company lodged a complaint for online cheating at the Central Bureau of Investigation which registered a case under Section 418, 419 and 420 of the Indian Penal Code.
The matter was investigated into and Arif Azim was arrested. Investigations revealed that Arif Azim, while working at a call centre in Noida gained access to the credit card number of an American national which he misused on the company’s site.The CBI recovered the colour television and the cordless head phone.
In this matter, the CBI had evidence to prove their case and so the accused admitted his guilt. The court convicted Arif Azim under Section 418, 419 and 420 of the Indian Penal Code — this being the first time that a cybercrime has been convicted.
The court, however, felt that as the accused was a young boy of 24 years and a first-time convict, a lenient view needed to be taken. The court therefore released the accused on probation for one year.
The judgment is of immense significance for the entire nation. Besides being the first conviction in a cybercrime matter, it has shown that the the Indian Penal Code can be effectively applied to certain categories of cyber crimes which are not covered under the Information Technology Act 2000. Secondly, a judgment of this sort sends out a clear message to all that the law cannot be taken for a ride.
Ref: Talwant Singh
Addl. District & Sessions Judge, Delhi
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