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Bharat Kumar

"The offence involves a person logging on to ISP server and impersonating the original user while giving the user name and password. This is, technically, cheating and can be brought under the IPC. The complainant will be better off invoking Section 43 of the IT Act, 2000."

Chennai , July 27

IT'S easy to differentiate between a pang in your heart and a dagger in it. The first is what you feel when your Internet service provider hikes access rates. The second comes when you discover that someone has been "stealing" your Internet time.

You can do nothing about rates going up. It's a free market economy, you know. But can you do something about theft of hours? It's strange that such a question should arise, especially three years after India has begun having her own cyberlaws.

But there is a difference of opinion over whether you can nab the culprit. The debate here is: can someone, technically, "steal" Internet access time? After all the Indian Penal Code (IPC) recognises theft of property only if it is movable.

Ask Mr Pavan Duggal, Supreme Court lawyer with an active interest in cyberlaws and he says, "There is no direct provision on theft of Internet hours. Sec 378 IPC deals with theft of movable property. I see tremendous difficulties in extension of this provision to cases of theft of Internet hours and obtain convictions."

He also says that "time" has never been considered as a property in jurisprudence.

It is possible to argue that since Internet hours are not physically connected to the earth, technically they are not immovable property and hence would come within the ambit of moveable property.

But, Mr Duggal finds such an argument, apart from being far fetched, unlikely to stand the test of law in Indian courts.

Mr Na Vijayashankar, author of "Cyberlaws for every Indian Netizen" feels it is possible to bring to book the culprit. He indicates a similar case that came to the courts in Delhi in 2000, sometime before the IT Act came into being.

At the time, a service person who had helped configure the Internet account later passed on the user login and password to a cyber café, causing depletion of the account time. The case, tried by the Police and lawyers, had come up against the technical snag of their inability to define Internet time as movable property.

According to M Vijayashankar, the offence involves a person logging on to the Internet Service Provider's (ISP) server.

To gain entry, he will have to necessarily impersonate the original user while giving the user name and password. This is, technically, cheating and can be brought under the IPC, he says.

He feels that the complainant will be better off invoking Section 43 of the IT Act, 2000 which deals with penalties and liabilities to pay damages up to Rs one crore to the affected person, if the respondent "tampers with or manipulates" a computer system.

According to him, the words "tampering with" and "manipulating" which include the meanings "to deal unfairly" or "to influence or manage shrewdly or deviously" are broad enough to cover the offence under this section.

According to Mr Vijayashankar, "The adjudication process, introduced in March 2003, is fast and convenient."

Once the application is submitted, the adjudicator is expected to order an investigation, if required, to identify the offender. This will be done with the help of the police.

If during such investigation the Police can unearth other offences such as "hacking", they can take criminal action against the offender in addition to the charges under IPC.

Mr Vaibhav Parikh, lawyer with Mumbai-based Nishith Desai Associates, feels Internet access time is property and is subject to stealing. He too cites the section of the IT Act as Mr Vijayashankar.

But what does he have to say to a victim of a theft of Internet hours?

"Practically, it may not make sense to fight against this offence as the effort and cost for pursuing such theft may be more than the cost of losing Internet access time."

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