Information Technology Act 2000 Information Technology

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INFORMATION TECHNOLOGY ACT 2000,INFORMATION TECHNOLOGY AMENDMENT ACT 2008. Frequently Asked Questions,DATA SECURITY COUNCIL OF INDIA. Niryat Bhawan 3rd Floor Rao Tula Ram Marg New Delhi 110057 India. Phone 91 11 26155070 Fax 91 11 26155072,Email info dsci in. w w w d s c i i n, Data Security Council of India DSCI is a section 25 not for profit company setup by NASSCOM. as an independent Self Regulatory Organization SRO to promote data protection develop security. and privacy codes standards and encourage the IT BPO industry to implement the same. For more information about DSCI or this FAQ contact. DATA SECURITY COUNCIL OF INDIA, Niryat Bhawan 3rd Floor Rao Tula Ram Marg New Delhi 110057 India.
Phone 91 11 26155070 Fax 91 11 26155072,Email info dsci in. Designed and Printed by,Swati Communications,91 11 41659877 91 9213132174. Published in December 2010,Copyright 2010 DSCI All rights reserved. This FAQ contains information that is Intellectual Property of DSCI DSCI expressly disclaims to. the maximum limit permissible by law all warranties express or implied including but not. limiting to implied warranties of merchantability fitness for a particular purpose and non. infringement DSCI disclaims responsibility for any loss injury liability or damage of any kind. resulting from and arising out of use of this material information or part thereof Views expressed. herein are views of DSCI and or its respective authors and should not be construed as legal. advice or legal opinion Further the general availability of information or part thereof does not. intend to constitute legal advice or to create a Lawyer Attorney Client relationship in any manner. whatsoever, he IT Amendment Act 2008 ITAA 2008 has established a strong data protection. regime in India It addresses industry s concerns on data protection and creates a more. predictive legal environment for the growth of e commerce that includes data protection. and cyber crimes measures among others Sensitive personal information of consumers held in. digital environment is required to be protected through reasonable security practices by the. corporates Additionally ITAA 2008 makes it obligatory for them to protect data under lawful. contracts by providing for penalty for breach of confidentiality and privacy Privacy protection. a long felt need of consumers in India and of clients overseas who are outsourcing their. operations to Indian service providers is now on a sound footing It will go a long way in. promoting trust in trans border data flows to India. A strong data protection regime also requires that cyber crimes such as identity theft phishing. data leakage cyber terrorism child pornography etc be covered to ensure data security and. data privacy It has adequate provisions for data storage and audits to ensure that cyber security. breaches can be handled through investigations and cyber forensics techniques The Act also. provides for security of critical infrastructure by terming such cyber attacks as cyber terrorism. and for establishing a national encryption policy for data security ITAA 2008 thus enhances. trustworthiness of cyberspace, In our interactions with the IT BPO industry banks public sector government organizations and.
others we have found that knowledge about the ITAA 2008 is rather low In addition to conducting. several seminars and workshops on ITAA2 008 we decided to promote better understanding of. the Act through FAQs There could not have been a more qualified person to write the FAQs than. Mr Vakul Sharma Supreme Court Advocate who was an expert member of the committee that. drafted these amendments I hope the reader will find the FAQs useful. Dr Kamlesh Bajaj, I The Information Technology Act 2000 An Overview 7. II Regulators the Judicial Process 13,III Crime Punishment 20. IV Data Protection Privacy Measures 29,V Role of Intermediaries 31. D ATA S E C U R I T Y C O U N C I L O F I N D I A,I The Information Technology Act 2000. An Overview, 1 Why the Information Technology Act 2000 hereinafter referred to as the Act was enacted.
The Act was enacted to provide legal recognition for transactions carried out by means of. electronic data interchange and other means of electronic communication commonly referred. to as electronic commerce, 2 From which date the Act and subsequently Information Technology Amendment Act 2008. came into existence, The Act is effective from October 17 2000 The amendments to the Act came into effect from. October 27 2009, 3 Whether the Act is based on certain international mandate adopted by India. The Indian Parliament enacted the Act called the Information Technology Act 2000 This Act is. based on the Resolution A RES 51 162 adopted by the General Assembly of the United Nations on. 30th January 1997 regarding the Model Law on Electronic Commerce earlier adopted by the. United Nations Commission on International Trade Law UNCITRAL in its twenty ninth session. India was one of the States which supported this adoption of Law by the General Assembly. 4 What is the jurisdictional extent of this Act, The Act extends to the whole of India including the State of Jammu Kashmir. 5 Whether the Act takes into consideration the extra territorial jurisdiction. It applies also to any offence or contravention there under committed outside India by any. person section 1 2 irrespective of his nationality if the act or conduct constituting the offence. or contravention involves a computer computer system or computer network located in India. section 75, 6 What is meant by the term Functional Equivalent Approach.
The functional equivalent approach extended notions such as writing signature and original. of traditional paper based requirements to electronic form. 7 What are the documents or transactions to which this Act shall not apply. The documents or transactions to which this Act shall not apply are as follows. a A negotiable instrument other than a cheque as defined in section 13 of the Negotiable. Instruments Act 1881 26 of 1881, b A power of attorney as defined in section 1A of the Powers of Attorney Act 1882 7 of 1882. I T A CT 2 0 0 0 I T A M E N D M E N T A C T 2 0 0 8. Frequently Asked Questions 7,D ATA S E C U R I T Y C O U N C I L O F I N D I A. c A trust as defined in section 3 of the Indian Trusts Act 1882 2 of 1882. d A Will as defined in clause h of section 2 of the Indian Succession Act 1925 39 of. 1925 including any other testamentary disposition by whatever name called. e Any contract for the sale or conveyance of immovable property or any interest in such. 8 What is an e cheque, A cheque in the electronic form means a cheque which contains the exact mirror image of a. paper cheque and is generated written and signed in a secure system ensuring the minimum. safety standards with the use of digital signature with or without biometrics signature and. asymmetric crypto system,9 What is a truncated cheque. A truncated cheque means a cheque which is truncated during the course of a clearing cycle. either by the clearing house or by the bank whether paying or receiving payment immediately on. generation of an electronic image for transmission substituting the further physical movement. of the cheque in writing,10 What are digital signatures.
It is a block of data at the end of an electronic message that attests to the authenticity of the. message Digital signatures are an actual transformation of an electronic message using public. key cryptography It requires a key pair private key for encryption and public key for decryption. and a hash function algorithm,11 What is the process of digital signature. Digital signature is a two way process involving two parties signer creator of the digital. signature and the recipient verifier of the digital signature A digital signature is complete if. and only if the recipient successfully verifies it. 12 What mandate has been given under the Act to electronic governance. The Act is also meant to facilitate electronic filing of documents with the Government agencies. and to promote efficient delivery of Government services by means of reliable electronic records. 13 Whether the Act recognises delivery of services by service provider. Section 6A of the Act provides efficient delivery of services to the public through electronic. means Every service provider needs due authorization to a function as a service provider for. a time period as decided by the appropriate Government b provide prescribed services only. and c collect and retain such appropriate e service charges or scale of service charges thereof. as prescribed, I T A C T 2 0 0 0 I T A M E N D M E N T A C T 2 0 0 8. 8 Frequently Asked Questions,D ATA S E C U R I T Y C O U N C I L O F I N D I A. 14 Whether the Act provides for any statutory requirement regarding retention of electronic. Section 7 of the Act lays down the following conditions for retention of electronic records. a accessibility so as to be usable for a subsequent reference. b retention in the format in which it was originally generated sent or received or in a. format which can be demonstrated to represent accurately the information originally. generated sent or received, c the details which will facilitate the identification of the origin destination date and. time of despatch or receipt of such electronic record. This section should be read with section 67C of the Act please refer Q15 and Q16. 15 Whether any period of retention of records in electronic form has been prescribed. The Act provides no time period of retention of records in electronic form Records pertaining to. any subject matter should be retained in electronic form for that duration as mandated under. that specific legal framework for the time being in force. 16 Whether intermediaries are being subjected to any statutory provisions related to. preservation and retention of information, Section 67 of the Act provides that the intermediary to preserve and retain such information as.
may be specified for such duration and in such manner and format as the Central Government. may prescribe, In case of non compliance of aforesaid provision by an intermediary intentionally or knowingly. the said intermediary be punished with an imprisonment for a term which may extend to three. years and shall also be liable to fine, 17 Whether the Central Government has framed any rules for intermediaries to preserve and. retain any such information as may be specified for such duration manner and format. Till date the Central Government has not framed any rules for intermediaries to preserve and. retain any such information as may be specified for such duration manner and format. 18 Whether there exists any statutory requirement regarding audit of documents etc. maintained in electronic form, Section 7A of the Act is another step towards creating functional equivalence It articulates that. where in any law for the time being in force there is a provision for audit of documents records. or information that provision shall also be applicable for audit of documents records or. information processed and maintained in electronic form. 19 What would be the audit period or duration of such documents records or information. processed and maintained in electronic form, I T A CT 2 0 0 0 I T A M E N D M E N T A C T 2 0 0 8. Frequently Asked Questions 9,D ATA S E C U R I T Y C O U N C I L O F I N D I A.
It would be as per the law for the time being in force for that specific area subject matter For. example if under the Income Tax Act 1961 law requires audit of documents records or. information on annual semi annual or quarterly basis the same audit period or duration. would have to be followed by the assessee if he is processing and maintaining records in. electronic form, 20 Whether electronic contracts are valid under the Act. The aim and object of section 10A is to recognize legal binding character of online contracts It. provides legal certainty as to the conclusion of contracts by electronic means It deals not only. with the issue of contract formation but also with the form in which an offer proposal and an. acceptance may be expressed It covers not merely the cases in which both the offer and the. acceptance are communicated by electronic means but also cases in which only the offer or only. the acceptance or revocation of proposals and acceptances is communicated electronically. The aforesaid section is not meant to impose the use of electronic means of communication on. parties who rely on the use of paper based communication to conclude contracts Thus the said. section should not be interpreted as restricting in any way party autonomy with respect to. parties not involved in the use of electronic communication. 21 Whether click wrap web based email contracts are valid. Yes click wrap web based and email contracts are valid However it is important that the pre. requisites of a legal contract as laid down under the Indian Contract Act 1872 must be fulfilled. 22 Whether contracts can be entered into by means of emails VoIP services Skype gtalk etc. video conferencing mobile phone communication device etc. Yes legally enforceable contracts can be entered either written or orally by means of e mails. SMSs VoIP video conferencing services etc, 23 What are the do s and don ts while entering into contracts with a vendor which recognises. online communication process as a mode of acceptance. b A power of attorney as defined in section 1A of the Powers of Attorney Act 1882 7 of 1882 IT ACT 2000 amp IT AMENDMENT ACT 2008 8 Frequently Asked Questions

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