Contemporary Issues and Urgent Need of Effective Implementation and Revision in Cyber Security Law of Nepal
What is Cyber Law?
Cyber Law is the law that governs and deals with the Cyberspace. Cyberspace includes different electronic devices such as, Computers, Cell Phones, ATM Machines, which uses different other factors to connect with the outer space or other electronic devices such as, Internet, Networks, Software, Data Storage Devices, Websites e.t.c. Cyber Law deals with the Cyber Crimes. Where, Cyber crimes are any crimes committed with the help of computers and telecommunication technologies, these Cyber Crimes may come in the common form of,
2. Identity Theft
3. Attacks on Computer System
4. Publication of illegal or prohibited online content
5. Online scams and fraud
6. Theft of Intellectual Property
7. Theft of Electronic or Digital Signatures
8. Data protection and privacy
The modern day world is a digitized world, where we not just imagine but live an eased life that technology has created. The rapid growth in the technology has increased the number of its users resulting Cyber crime to be the fastest growing area of crime. Crimes have always been an inevitable part of human civilization, back then crimes took its conventional method where the culprits used to get directly involved in the scenario of the crime to administer it but in this technologically advanced world the culprit attempt and commit any forms of crimes using the cyberspace. For e.g. Robbery of a bank using a conventional method bears the risk of getting caught, hiding from different security agencies, while doing the same thing by transferring the amount to an offshore account mitigates the vulnerabilities to get caught using the modern day technology.
The report of National Research Council, U.S.A. “Computers at Risk” published in 1991, which stated that, “The modern thief can steal more with computers than with a gun. Tomorrow’s terrorist may be able to do more damage with a keyboard than with a bomb.”
The reliance over the criminal activities using the cyberspace is growing rapidly due to the convenience and anonymity served by the modern technologies to commit a manifold range of criminal activities with hidden identity.
The contemporary advancement seen in information technology shows a serious need to develop a strong system to address the challenges set forth to meet the vulnerabilities related to the Cyber security.
The Metropolitan Police Crime Division recorded, 221 complaints in fiscal year 2015/16 related to Social media sites, which increased to 769 complaints in the year 2016/17. While observing the trend of court practices, only 50 cases were recorded in the District Court of Kathmandu in 2015/16, while only 27 cases were recorded among which 14 were related to harassment in 2016/17. This shows a poor trend of court practice in Nepal, which is the result of lack of cyber law related knowledge, a strong presence of the cyber law itself and its execution.
In Nepal, Electronic transaction and Digital Signature Act, 2063 deals with the cyber related issues. Under this Act, Hacking, deleting data, stealing e-documents, software piracy and posting defamatory information are incorporated as the punishable offences.
Where, section 44 of the Act states that, Pirating destroying or altering computer source code or making other to do so, with a malafide intention using computer, computer program, computer system or network can make him/her be liable to the punishment with imprisonment not exceeding 3 years or fine not exceeding 2 lakhs or with both.
Section 45, of the same Act mentions that, unauthorized access in computer materials shall hold the liability with the same intensity of punishment as in section 44.
Section 46, mentions that, Damage made to any Computer and Information System knowingly or with a mala fide intention to cause wrongful loss or damage to any institution destroys, damages, deletes, alters, disrupts any information of any computer source shall be liable to the punishment set above.
Section 47, states that any Publication of Illegal materials in an electronic form that are prohibited to publish or display by the prevailing law which contrary to public morality or decent behavior or any types of materials which may spread hate of jealousy against anyone or may jeopardize the harmony between castes, tribes and communities shall be liable to punishment with the fine not exceeding 1 lakh or imprisonment not exceeding 5 years or with both. Where, if any person repeatedly commits the same crime may be liable to the punishment of one and one and half percent of the punishment previously received.
Section 48, of the same Act provides protection to the Confidentiality to Divulge (to make known private or sensitive information) by making any unauthorized access to any book, record, register, correspondence, information, documents or any other material may be liable to fine not exceeding 10,000 rupees or imprisonment not exceeding 2 years or with both, depending on the degree of the offence
Section 49, mentions the provision related to Information of False Statement to acquire any digital signature shall be liable to the punishment with fine not exceeding 1 lakh or with imprisonment not exceeding 2 years or with both.
Section 52, mentions that, if any person, with an intention to commit computer fraud or any other illegal act, creates, publishes or otherwise provides digital signature certificate or acquires benefit from the payment of any bill, balance from others account, any inventory or ATM card or otherwise by committing any fraud, the amount to the financial benefit so acquired shall be recovered from the offender and shall be liable to the punishment with a fine not exceeding 1 lakh rupees or with an imprisonment not exceeding 2 years or with both.
Section 53, of the Act mentions that, If any person Encourages to commit computer related offence or involves in conspiracy shall be liable to the punishment with fine not exceeding 50,000 rupees or with imprisonment not exceeding 6 months or with both, depending on the degree of the offence.
Section 54, Punishment to the accomplice, a person who assists others to commit any offence under this Act or acts as accomplice, by any means shall be liable to one half of the punishment for which the principal is liable. Section 55, if any person commits any offence under this Act and which involves the computer, computer system or computer network system located in Nepal, even though such act is committed while residing outside Nepal, a case may be filed against such a person and shall be punished accordingly.
Section 57, in case of Offences Committed by a corporate body, the Chief for the operation shall be responsible for such act, but if the person responsible as a chief of the operation of such corporate body proves that an offence was committed without his/her knowledge or even after he/she exercised reasonable efforts to prevent such an offence, he/she shall not be liable to the guilt and such person who committed such act shall be liable to the punishment.
Section 58, mentions that, if any violation of this Act or Rule framed here under has been committed, for which no penalty has been separately provided, such a violator shall be liable to the punishment with fine not exceeding 50,000 rupees or with an imprisonment not exceeding 6 months or with both. In this technological world, Cyber crime has been a growing threat to a person, property and government at large. Day after day the number of crimes related to cyber security has been increasing with the growth of computer literacy, the government agencies such as tax offices, banks, and other private companies store valuable details in the electronic forms to preserve them. But are these details secure from the hackers, are the people using these technologies well aware about these cyber related crimes and the laws? Are the investigation authorities, government agencies and the implementation authorities technically equipped to investigate and punish such culprits are the question we need to think about very minutely to address the growing rate of cyber crimes in Nepal. Along, with which the execution of the prevailing cyber law and its revision based on the growing nature of cyber crimes are the urgent need in context of Nepal.
Author: Anita Tako