These two cases have once again drawn attention to the lacunae in the legal aspects related to hacking. Numerous tedious cyberlaw issues are beginning to arise in relation to hacking. The world over, hacking has been understood as an undesirable phenomenon. It has been increasingly used to denote the practice of any person unauthorisedly entering into any computer system for the purpose of copying, deleting or altering information. However, Section 66 of the IT Act, 2000, gives possibly the most wide definition and interpretation of the term hacking. Section 66 states as under:- n Whoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means, commits hacking. n Whoever commits hacking shall be punished with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or withboth."

Admittedly, the definition of hacking under section 66(1) of the IT Act,2000 is much wider than the internationally accepted notion of the term. The drafting of this section by the legislature is likely to make it the mother section of all provisions of the IT Act 2000. In a vast majority of cases, whatever a person does, whether with intention or knowledge, over the Internet or in the electronic medium is likely to invoke the mischief of section 66 of the IT Act 2000. Also the said section prescribes wide ranging concepts with no parameters as to how the said concepts would be duly proved in a court of law. First of all, it is a tall order to prove intention to cause wrongful loss or damage in the electronic environment and Internet.

The words "wrongful loss" are not defined under the IT Act 2000. However Section 23 of the Indian Penal Code defines "wrongful loss" to mean "loss by unlawful means of property to which the person losing it is legally entitled". At a time when cyberlaw is developing, thereare numerous gray areas and in many instances the concept of legal entitlement is not yet crystal clear. Further, how do you prove the diminishing of value of information? The value of information is inherent in the information itself. Further the value of information is likely to differ from context to context and from perspective to perspective. Further there will be great impediments to prove diminishing of utility of information. No standards for proving the same as per law have yet been laid down. Also, how will you prove that information has been affected injuriously by any means? What are the norms and standards for proving injury in the electronic medium and Internet? Can a case where the access of a site has been blocked by a Web hosting company due to non-payment of dues for Webspace, be brought within the ambit of section 66 of the IT Act,2000?

Clearly this is an issue which hardly comes within the accepted norms and mischief of hacking. Further when a customer does not pay for Web space to the Web hosting company, the customer has no legal rights to the said Web space. In such a case, the concerned Webspace remains the property of the Web hosting company and that the said company can place any banner on its legal Web space which is legally vesting with the Web hosting company. In such a case, section 66 of the IT Act, 2000 can hardly be invoked. It must be understood that the provisions of a particular law have to be interpreted keeping in mind the objects of the law. The object of the IT Act,2000 is to provide for a legal infrastructure for promoting e-commerce in the country.

In no case should provisions of the IT Act, 2000 be interpreted in such a manner so as to defeat the cause and purpose of e-commerce. Also, since the IT Act has also provided for various civil wrongs for which damages by way of compensation upto Rs 1 crore have been stipulated, it would be prudent to establish a distinct line of distinction between civil wrongs and criminal liability. It lies upon the law enforcement agencies and the judiciary to ensure that the provisions of criminal liability under the IT Act 2000 have to be strictly applied and for those instances for which civil remedies have been prescribed, the invocation of criminal liability should be strictly restricted. In the present year, we are likely to see far more reported cases of hacking. It is essential that we as a nation lay down the right foundation for the development of cyberlaw relating to hacking in India.

Mr Duggal is an advocate at the Supreme Court of India, a Cyberlaw consultantand president, cyberlaws.net