Reprisal of the Bill of Proposed Electronic Crime Act 2004

The clause (c) of Electronic Crime Act 2004 has been defied Cyber Stalking as defined in XXII of the Pakistan Penal Code 1860 and also clause (g) defines defamation which means Section 499 of the Pakistan Penal code 1860; but no as such provision are included on matter connect with commission of offence of electronically misuse and infringement of Internet Domain Names as Trade Marks which have defined in Chapter XIII Trade Marks Ordinance 2001.

The section 8 has defined the offence of fraud but the misrepresentation has not been declared as offence. The fraud and misrepresentation are two different offences. I recommend here that new section should be added to include the misrepresentation as offence. There are many offences committed by misrepresentation of facts, not falling under the heading of fraud.

The section 18 has failed to address the root cause of offence of pornography and the construction of statute is ambiguous in the definition of pornographic material of material being hosted web hosting sites. The pornographic material are made available to internet viewer by web hosting sites rather their location is within the Jurisdiction of Pakistan or not, that offence are committed browsed by viewer within the jurisdiction of Pakistan. The uncontrolled expansion of Pornography owns due to local ISPs but no criminal liabilities have been shoulder on web hosting sites and ISPs in proposed Electronic Crime Act 2004. I recommend here that the specific wordings should be added to decrease the chance of misinterpretation of statute and to create consistency of precedent with intention of legislature.

The construction of statute of section 24 is too liberal and exhaustive. In the good statutory construction such type of practice is often not appreciated. The section 27 has made proviso that no Court inferior to the Court of Sessions shall try any offence under this Act but the commission of other offences as given in section 24 which are committed through electronic means implies jurisdiction have given to session court to try such offences, but certain offence which are not falling within the jurisdiction of session to try offence like copyright infringements which are triable by Magistrate but this proposed Act has barred the magistrate to try such offence. The Act has failed to make any provision for commission of offence against the copyright publications on World wide Pages. The specific provisions must be included to provide legal protect and safeguard to electronic commerce. The legal protection must be granted to informative and online e-pages published on www formation. The misuse of electronic cards must also be declared as criminal act and there must be regulatory frame work for all online pages for protect of consumers in Pakistan. The internet trademark violations growing out of his operation of a pirated Internet website should be regarded as crime so that aggravating influx of uncontrolled flood of Web pages can may controlled.

The Act has failed to provide penal provision for the illegal sale of prescription drugs and controlled substances and online facilities are used in the furtherance of a broad range of traditional unlawful activity. The rise of Internet pharmacies creates a world of new conveniences. But it also creates a number of legal issues which we need them to put under penal of Electronic Crime Act 2004 so as to regulate the sale of prescription drugs. In Addition to these unlawful activities, no provisions has not included for prevention of the commission of the offence of online gambling. There are many sites which are operating gambling internet and are browsed within the jurisdiction of Pakistan.

There are many illegal e-business operated in the jurisdiction of Pakistan, the persons operating these are actively concealing their identity and place of transaction for purpose of evasion of taxation by e-commerce means. These e-businesses are accessed and browsed by Pakistani Viewer. The active concealment of operation of business is a criminal act committed if it is not disclosed to Central Board of Revenue but no penal provision has been included for criminal act of the evasion taxation of e-service which is punishable under Pakistan tax statutes. It is recommended that unless the Central Board of Revenue does not have any administrative set up of own, the special wing constituted under this Act must provide facility for discouraging the commission of such offence.

The Act has failed to provide the special procedure for trial of such offences. Without having detailed provisions of special procedure for electronic crimes, the Code of Criminal Procedure 1898 will not meet the procedural requirement for criminal proceeding of the accused. What I recommend here the act must include special procedure for trial of person accused of electronic crimes. The most glaring weakness of the act is that is failed to provide specific rule of investigation for electronic crimes as required by technicality of matter for purpose of adjudication. The section 29 has provided provisions for establishment of special agency which will investigate the electronic crimes. If the code of criminal procedure 1898 is accepted as procedure for prosecution of electronic offences, then there must be made specific amendment in Code for making compactable with investigating standard of the search and seizure required for electronic crimes prosecution.

The section 32 of proposed electronic Crime Act 2004 has empower the investigating office to take necessary steps for expeditious preservation evidence including taking into safe custody up to a maximum period of fifteen days or making or retaining a copy of such data. The wording of statutory has failed to provide the methods of presentation of the evidence before court of law. What I recommend here the statutory wording should be added of conversion of the electronic evidence into paper base form for presentation of the evidence before the court of Law. The trickiest matter is an investigation of such offences is collection of evidence, and its presentation before the court law for prosecution. The disposition of this act of investigation is inadequate for conducting of fair trial of offences which are exclusively falling in jurisdiction of Pakistan. The electronic crimes are requires most responsible procedure due to difficulty of proving which may not falling within traditional legal frames. It is also possible that the electronic crime may be falling within several jurisdictions. Proving the crime has been committed is the most difficult stage of investigation, since experienced offenders cover their tracks; while going through the justice system, especially in those countries which refuse to cooperate while collecting evidences and unless and until international co-operate is sought. Mere the sanction of law will not server the end of justice.

Electronic Crime Act will have to prepare Criminal courts for cyber and electronic jurisprudence. Both the substantive laws and procedural laws will require new exposition in the light of the experience arising from technological complexities not envisioned hitherto in proposed electronic Crime Act. The challenge before the courts would be how to evolve cyber jurisprudence consistent with our procedural requirements. Courts will have to exercise the powers of search and seizures, data penetration and material collection permitted under Code of Criminal Procedure 1898; rather they will be able to initiate any such prosecuting where the complexities of technology will overwhelm them. The cyber regulatory law should be a single comprehensive framework, which would deal with civil and criminal laws. The legislation should address computers and computer material as unique objects and cover all computer-related aspects in the categories of crimes by means of computers and crimes against computers.

What I recommend here, the power to summon as defined in subsection (1) of section 94 of Cr.P.C (Act V of 1898) shall be extended so as to add the power of police to summon all persons who have committed cyber crimes. I also recommend here that amendment should be made in section 95 of the Cr.P.C. (Act V of 1898) in manner as to add wordings of ‘electronic document’ in parallel with the power of possession of documents held by postal and telegraphic authorities and the similar types of amendments are recommended in subsection (1) of section 96 and in clause (a) to (e) of subsection (1) of section 99 of Cr.P.C 1898. The section 510 of Cr.P.C. (Act V of 1898) should be amended for acceptance of the report of Service Provider issued under section 21 of Electronic Transaction Ordinance 2002.

The enforcement of criminal sanctions does not ensure the success in combating the electronic or cyber crime, because of the necessary mechanism of ensuring activities and cooperation of the law enforcement agencies for proper detection and the difficulty of interpretation will hamper the end of justice unless the agencies and courts are not properly trained to do so for prosecution and punishment of such offences.

The writer is an advocate of High Court and practicing immigration and corporate laws in Pakistan since September 2001. He is a self employed and pioneer in research on electronic commerce taxation in Pakistan. His articles were published widely in the critical areas of cyber crimes, electronic commerce, e-taxation and various other topics. He wrote LL.M thesis on titled “Legislation of electronic commerce taxation in Pakistan” in which he provided comprehensive legal proposals for statutory reconstruction of tax laws for purpose of imposition of taxation on e-business in Pakistan.

Currently he is conducting is research on topic ‘Electronic commerce taxation: emerging legal issues of digital evidence’.

Author can be contacted by adil.waseem@lawyer.com

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