Basic of human rights jurisprudence-A synoptic view

Human rights are those fundamental rights to which every human being living in any part of the world is entitled to be virtue of having been born as human being. Human Rights constitute a genus to which humanitarian law is a species.  The former relates to the basic rights of all human being everywhere, at all times, and the latter relates to the rights of particular categories of human beings, such as the sick, the wounded, prisoners of wars during armed conflicts and hostility.  In common parlance, human rights may be described as rights which are inherent in the people by virtue of their being human beings, the rights that are required for the full and complete development of human personality.

Human rights are based on identical fundamental conceptions.  The most fundamental is the idea of human rights as presupposition of a human life worth living, in whatever minimal sense.  No life can be worthwhile without enforceable guarantees, against the state and others to physical integrity, freedom of thought and action and minimal means of subsistence.  A human life worth living in a minimal sense presupposes protection of life in normal circumstances, a decent amount of personal property and the coercive force of law of contract. Of course, human rights also prohibit torture and humiliating treatment.

What is true is that human rights are the statements of basic needs or interests.  To be true, needs constitute one of the founding elements of human rights.  In general terms it has been maintained that by resorting to needs, one accept that the anthropological base of human right is to be found within them, in such a way that to recognize, exercise and protect a basic right means that in the end one hopes to satisfy a series of needs, understood  as claims which are considered essential for the development of a dignified life.

The first problem that we need to tackle in understanding the very basis of human rights jurisprudence is to clarify the very notion of basic human needs. Truly speaking, need is a situation that is always predicted in a person and is inescapable for the person.  Thomson rightly defines the basic characteristic of basic need  as avoidance. It refers to those situations that deprive someone of something that is basic or essential and consequently, we relate directly to the notion of injury, deprivation or serious harm to a person, which obviously can have a contextual determination. It is clear that this idea calls for one to transcend the conception of harm in terms of deprivation or frustration of the living we want, as well as meta physical parameter.  These situations in which a person finds him/herself and those from which they cannot escape are closely related or have direct repercussions on the quality of human life and have a basic characteristic that enables us to talk of a need: the harm will remain at exactly the same level, expect in the case where the situation is fulfilled or carried out ant there is not alternative possibility of getting out of it. Therefore, as Thomson and Galtung, among others, point out, it is not a question of transient set-back, problems or impairments, but of a permanent degeneration in the quality of human life which will remain so long as satisfaction is not reached.

It is imperative to point out that needs are ofter confused with the means of satisfying them. The existence of a need is a separate or different issue from the satisfaction of that need: the first step consists of proving that a need exists. The second step consists of raising the question of if this need should be satisfied or not.  There is no necessary casual relationship between one step and another.  The needs basically provide up with arguments for supporting reasons which seem better or stronger than others, when we want to satisfy these needs. If needs give rise to good reason that are enough to require satisfaction and on the other hand, if the claim for basic human needs to be satisfied is good enough reason for them to be recognized as rights, then this order of questions links our study with the field of practical reasoning, which, in turn, is located within the framework in which the problem of the foundation of human rights must be situated.

Service providers and copyright infringement through internet

 “If you can’t protect what you own—you don’t own anything.” [1]

Motion Picture Association of America

In today's modern world Copyright laws face fundamental challenge from the field of Internet. Internet is the fastest growing technology which not only provides information but also distributes it all around the world. Accessibility of Internet and computer literacy among people has tremendously increased the use of Internet in recent times. Virtually, almost anyone who has minimum computer knowledge is able to access Internet and its services to receive and sent data all over the world.

Customers are provided access to Internet by Internet Service Providers or Internet Access Providers. An ISP connects customers into a data transmission technology that is suitable for providing software package which enables users to gain access to Internet. But are those ISPs responsible for any copyright infringement by conveying copyrighted contents created by others? Lot of aspects has to be looked into in detail from all point of views to get an answer to this question.

The law on copyright gives protection to "original works of authorship fixed in any tangible medium of expression." [2] The holder of a copyrighted material gets exclusive rights which lasts for the author's life time plus an extended period of fifty years. Copyright holder's exclusive rights comprise the right to reproduce, distribute, perform, demonstrate or license their work. When a copyright infringement occurs, the exclusive rights of the holder are being utilized by someone without the consent of the holder.  

To deal with it primarily, Copyright infringement basically occurs in three ways i.e., direct infringement, vicarious infringement and contributory infringement. The first one occurs in cases where a person flouts an exclusive right of a copyrighted product. The second one occurs in a situation where a person was unsuccessful to prevent an infringement when he should have prevented it and by doing so he directly gains from that infringement. Whereas in contributory infringement the person takes part in an act of direct infringement and at the same time is aware of such an activity.

Mostly copyright infringement through digital media and internet widely occur in countries with less stringent copyright laws. The most prominent international treaty related to copyright infringement is Berne Convention of 1886. With the Berne Convention Implementation Act of 1988, the United States became the 80th signatory of Berne Convention. US acceptance of the treaty was subject to an exception of moral right in Article 6 of the convention. In US, literacy criticism and parody are the most pertinent areas of copyright infringement defense under the fair use.

It is a disputed fact that ISPs profit from pirated use of the Internet and they have a superior position than an independent author or publisher to monitor consumer's use of the internet.  On the contrary the ISP argues that their role is similar to telecommunication as they are not active transporters and so they are liable to get some restriction to liabilities of copyright infringement. Furthermore, according to them liability towards ISPs could possibly restrain the augmentation of Internet and solutions to this issue would be possible only through innovated technologies.

The case Playboy Enterprises Inc. v. Frena , was decided in the year 1993 where the liability of copyright infringement by ISPs was considered by the court. The defendant being an operator of a computer bulletin board service naively circulated unauthorized copies of photographs belonging to Playboy Enterprises, Inc. It was agreed by Frena that the photographs were put on show in the BBS without an approval from Playboy. Nevertheless, it was the argument of Frena that he had not uploaded any infringing pictures to the BBS but his subscribers did it. He said as and when he was informed about the matter he removed the infringing pictures.

But upon hearing the case the court's verdict was against Frena and he was found guilty of copyright infringement. The court evaluated certain elements in making its decision for copyright infringement.

·         To constitute a prima facie copyright infringement the holder must establish ownership of the copyright and "copying" by the infringer.

·         Elements of access and similarity of infringed materials.

·         Whether the actions of the infringer violated any of the exclusive rights of the copyright holder.

According to the court Frena's actions had violated exclusive right of Playboy to distribute and display its work. Frena's defense of fair use exception to copyright infringement was of no use. The court considered the nature of Frena's action as commercial and decided that it has resulted considerably negative impact on the value of Playboy's material and so will not constitute a fair use exception. Court held that intent or knowledge is not necessary an element of copyright infringement and so even an innocent is liable for copyright infringement.

The Online Copyright Infringement Liability Limitation Act (OCILLA) is a federal act of United States that grants protection to online service providers including Internet service providers or other internet intermediaries from liabilities of infringement committed by others. The act came out as a portion of Digital Millennium Copyright Act (DMCA) in 1998.  It is added to Section 512 to Title 17 of United States Code which is often referred to as a "safe harbor" provision or as "DCMA 512." The objective of the act is to safe guard the growing interests of protected copyrighted materials and electronic and digital consumers.

The statute reads as follows:

§ 512. Limitations on liability relating to material online

(a) Transitory Digital Network Communications. — A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if —

(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;

(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;

(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;

(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and

(5) the material is transmitted through the system or network without modification of its content.

One another important case regarding copyright relating to ISP is Religious Technology Center V. Netcom. In this case the defendant Dennis Erlich was a local critic and a former minister of the Church of Scientiology. He had subscribed an on-line BBS known as "support.com" controlled by Thomas Klemesrud who was another defendant in the suit. The online forum conducted discussions and criticism about the church.  Netcom was one of the biggest ISP in America and the BBS got access to the Internet through Netcom. The plaintiff Religious Technology Center and Bridge Publications, Inc. were the copyright holders of both published and unpublished work of the late founder of the Church of Scientology. Parts of the copyrighted work were posted onto the BBS by Mr. Hubbard. Subsequently, RTC approached Erlich and Klemesrud to remove the copyrighted materials, which they both refused to do. RTC charged Erlich with several claims but the claims against Klemesrud an Netcom primarily for direct and vicarious infringement of copyright.

While considering this case court examined the technology and working of the Internet and approved that the function of the internet is basically producing replica of provisional documents on each computer that accept, coveys and/or open a document. However the courts finding was that these technical replica could not be liable for direct copyright infringement by Netcom. The court found that Netcom did not instigate the copying of the copyrighted work instead it instituted a computer system that was incorporated into the internet. The court further observed that copyright infringement could not be applied in this case since all individuals who own a computer through which Erlich's message had send would be liable for copyright infringement. The court found this to be irrational and held that "there is no need to construe the [Copyright] Act to make all of these parties infringers."

According to the court though copyright statute imposes strict liability there should be a component of violation or causation when a defendant's system is used by a third party to merely copy or create something. The court further observed that it is not sensible to adopt a regulation leading to liability of a number of parties whose part in the infringement is to set up and operate a system that is essential for the performance of Internet.

The liability of copyright infringement on the Internet often turns to a point where the extent to which the owner or Internet Service Provider or Bulletin Board Service operator is aware and controls information kept on the Internet by each individual subscriber. The implementation of Online Copyright Infringement Liability Limitation Act can be considered as a blessing for the ISP and for the Internet as such. For many years major concern about this issue was that the subject of copyright infringement through Internet had made Internet Service Provider's time and money to defend cases than getting programmers. But the Online Copyright Liability Limitation Act has provided great opportunity for service providers to build the technology of Internet rather than spending money and time to defend a copyright infringement case. Information Technology Act of 2000 releases ISPs from any liability of copyright infringement provided they can prove that they are unaware of the act and they had taken all precautions to avoid any violation.

Submitted by

Vinitha Prasannan

Sources:

[1] WIPO Copyright Treaties Implementation Act & Online Copyright Infringement Liability Limitation Act: Hearing on H.R. 2281 & H.R. 2180 Before the Subcomm on Courts & Intell. Property of the House Comm. On Judiciary , 105th Cong. 33, at 78 (1997) at 78 [Hereinafter House Judiciary Comm. Hearing on WIPO Treaty & Online Copyright Legislation, September, 1997 ] (prepared statement of Jack Valenti, President & CEO Motion Picture Association of America (MPAA).

[2] § 102. Subject matter of copyright: In general

http://www.bc.edu/bc_org/avp/law/st_org/iptf/articles/content/1999060401.html

http://www.copyright.gov/onlinesp/

http://www.copyright.gov/title17/92chap5.html

  

IP-IT POLICY FOR TECHNOLOGY ENABLED COMPANIES

IP-IT POLICY FOR TECHNOLOGY ENABLED COMPANIES IN INDIA: HOW FAR ENFORCEABLE? AND BEST PRACTICES

Need for an IT -IP Policy

While running a small business we need plenty of time for personnel management. Those things range from client meetings to project completion. The best possible solution you have is to engage employees to handle each segment of work independently. Companies adopt this technique to carryout their tasks unless or until it is evident that a major problem exist. For that reason it is necessary to give the employees of a technology enabled company a feeling of ownership and autonomy towards the institution they are employed with. In order to act accordingly the employees need to know the rules and regulations of the company.

Typically, a company has many rules and regulations in relation to working time; leave sanctioning, health benefits etc. But with the coming of globalization and research and technology growth within the country and abroad it is highly recommended to have a well planned company policy that covers company's Intellectual property rights and Information technology.

Every company, small or large, within or outside the country that uses computers should have a written policy to enlighten its employees and individuals engaged with its business on computer and Internet usage. Intellectual Property of a company is its intangible knowledge generated by research and technology using the company's resources which needs to be protected from commercial exploitation. IP is an outcome of intellectual output from the unique research and industrial consulting of the company which is an exclusive product to be protected under a well crafted IP-IT policy.

Indian IT Industry

Indian software Industry had been able to perform so well in the global competition, as compared to other industries, going from a mere US $150 million in 1991-92 to a staggering US $ 5.7 billion (including over $4 billion worth of software exports) in 1999-2000.  Since 1991 the annual growth rate of India’s software exports has been consistently over 50 percent. Presently, Indian companies export software and services to nearly 95 countries around the world.  This aspect throws light into the necessity of a comprehensive and effective IT -IP policy for IT companies in India.

Information Technology Act 2000

In India, the Information Technology Act of 2000 is considered as the master legislation in the area of information technology that provides regulations for the use of computers, computer networks, computer systems, electronic data and information, its development and usage. The legislation has provided legality for the use of electronic contracts and electronic formats along with together with other aspects such as electronic authentication, digital signatures, cyber crimes and liability of network service providers. As the use of IT and IT related companies increased tremendously, crimes related to the use of those technology also increased.  

Cyber crimes

A cyber crime can occur when an unlawful act has been committed by an individual by using a computer as a tool or a target or as both. Computers can be used as a weapon or to attack other computers. Some of the illegal activities in which criminal misuse of information technology includes are unauthorized access and hacking, Trojan attack, Email and IRC related crimes, denial of service attacks etc. In India Cyber Laws or Internet Laws regulate these activities. In recent times we have heard lot of cyber crimes being done by professionals by using computers and electronic gadgets as a media.

Considering the present scenario in cyber crimes it has become highly essential to provide adequate protection to entities like IT company's and financial institution's database. Government, realizing the inadequacy of the existing IT Act had made different proposals to amend the existing Act and finally Information Technology Amendment Bill of 2008 was passed by both the houses of the parliament. The Act had also considered computer related privacy issues and protection of stored data. The introduction of "The Personal Data Protection Bill" in 2006 has also provided regulations for protection of personal information.

Companies and Contract Laws

Indian companies mostly rely on Contract Laws as a useful tool to protect their information and Intellectual property rights. Today's corporate companies have to deal with several similar companies and clients, their agents including partners in the course of their business endeavors. Most important is to deal with their employees. It is essential to have an IT -IP Policy that can be followed by each entity or personnel who deals with the Institution. The company's IT - IP Policy shall be made in accordance with the existing laws of our country. Contracts and agreements such as Non-Disclosure Agreements, Anti-circumvention Agreements, user license agreements, and referral partner agreements are some of the few types of agreements which are basically entered into by companies while doing their business.

Breach of contract and breach of confidentiality can be evoked as a major ground while dealing with an infringement of any such agreements under Contract Laws. An employee shall be made aware of the importance of an employment contract along with the existence of an IP-IT policy and nondisclosure and confidentiality clauses while entering into a contract with the employer company. These agreements and understanding between the employer and an employee will cater the smooth functioning of an IT firm or a corporate company in a most efficient manner.

Major Sections in IT Act 2000 and its Sanctions

Section 43 of the IT Act deals with unauthorized access to computers including downloading, copying of protected data etc imposing a punishment up to one crore. Section 65 deals with protection of computer source codes. This section imposes imprisonment or fine which may extend to 2 lakhs.  Section 66 provides protection against hacking. The punishment involves imprisonment of three years or a fine up to two lakh or both. Section 70 deals with the protection of data in a protected system. A protected system shall be any computer network or system which a government by official gazette declared as protected. The punishment shall be imprisonment which may extend to 10 years and fine. Section 72 safeguards privacy and deals with breach of confidentiality of the data. Punishment extends to two years imprisonment or fine extending to one lakh rupees or both.

The Act has brought tremendous changes in the existing cyber law of the county yet there exist shortfalls which actually give a way for cyber criminals to smear up electronic trails and evidence by providing them bail as a matter of right. Majority of the crimes under the Act are bailable offenses which can ultimately turn our country to a cyber crime paradise of the world.  

Best Practices:

Considering all these aspects Indian IT companies shall provide due importance to protect their Information Technology resources and Intellectual Property rights. It is advisable to prepare a comprehensive IT-IP policy that covers all aspects related to usage of IT resources of the company, as well as to protect its Intellectual Property rights.  The policy shall be prepared in accordance with the Information Technology Act, contract laws and law of confidence and common law practices.  

Submitted by

Vinitha Prasannan

Sources:

http://www.cyberlawsindia.net/

 http://www.indianembassy.org/indiainfo/india_it.htm

http://www.cyberlaws.net/itamendments/index1.htm

Right of Children to Free and Compulsory Education: An Indian Perspective

Independent India paved way to a new epoch for children in the country. By the enactment of Indian Constitution in the year 1950, provisions dealing with the development and protection of children in India came into existence. These provisions are included both in Part III and Part IV of the Constitution pertaining to ‘Fundamental Rights’ and ‘Directive Principles of State Policy’.[1]

Important Constitutional Provisions that may have direct impact on children include:

Fundamental Rights

·        Article 14: … shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

·        Article 15: … shall not discriminate against any citizen… (3) Nothing in this article shall prevent the State from making special provision for women and children. (4) Nothing … shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

·        Article 21: No person shall be deprived of his life or personal liberty except according to procedure established by law.

·        Article 21 A: … shall provide free and compulsory education to all children of the age of six to fourteen years…

·        Article 23: Traffic in human beings and beggar and other similar forms of forced labor are prohibited…

·        Article 24: No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.

Directive Principles of State Policy

·        Article 39: … (e) … the tender age of children are not abused… and not forced by economic necessity to enter avocations unsuited to their age or strength; (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood… protected against exploitation and against moral and material abandonment.

·        Article 45: …provide early childhood care and education for all children until they complete the age of six years.

·        Article 46: …shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes,…

·        Article 47: …raising of the level of nutrition and the standard of living of its people and the improvement of public health…

·        Article 51A: … (k) … parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.

In India, the constitutional provisions are guaranteed by the Fundamental Rights and Directive Principles of State Policy. Needless to say, India is one of the largest democracies in the world and it has a federal system of government and the States have their own government elected democratically. The Seventh Schedule of the Indian Constitution deals with the respective jurisdiction of the Central and State Governments over various subjects under the Union, State and Concurrent Lists. The survival, development and protection of children fall either in the Concurrent or in the State List. [2]

Apart from that various development programmes for children were carried out within the country under the Five-Year Plans in which some were wholly undertaken by the Central Government or the State Government and some by the co-operation of both.

In spite of these provisions, in India, children are exposed to more vulnerability where violations of their protected rights are still prominent in the society as a whole. Children are easily opened to various abusive activities like child labor, child trafficking and commercial sexual exploitation. According to 2001 Census, 12.6 million of Indian children are indulged in hazardous employment.[3] This throws light to the fact that, on a global standpoint, the Country has the most number of child laborers below 14 years. [4]

While one of the main reasons for increased child labor in India is considered to be poverty, there are lots of other underlying factors to be determined which includes social and sexual discrimination, awareness of parents to educate children, quality of education provided and understanding the value of education etc. Some states in India, like Bihar, Mizoram, Rajasthan and Uttar Pradesh has 60% or more drop out among girls prior to completing their basic five year primary education.[5]

It was only recently in the year 2002, by the 86^th Constitutional amendment, India included right to education as a fundamental right under the Constitution.[6]

Right to Education Act 2009

It took more than 6 decades after Independence for India to clear the RTE Bill that is aimed to provide free and compulsory education for her young citizens. As all rights in Chapter 4 are not enforceable, this was made enforceable by incorporating Chapter 3 of the Constitution as Article 21. As per the 86th Constitution Amendment Act that added Article 21A, every child between 6 to 14 years of age has the right to free and compulsory education in India. This amendment is being given effect by the Right to Education Act [RTE] by the parliament of India on August 4, 2009. [7]

Key features of the Bill

According to the Act, government schools shall be administered by school management committees and these schools shall offer free education to every single child. Apart from that, private management schools shall admit a minimum of 25% children free of costs. In spite of this aspect, a National Commission of Elementary Education (NCPCR) shall come into existence in order to supervise different aspect of elementary education in India. Some of the important provisions of the Bill include:

·        25% reservation in private schools for disadvantaged children from the neighborhood, at the entry level; no seats shall be left vacant.

·        Reimbursement of expenditure incurred by schools by the Government;

·        There shall be no donation or capitation fee on admission;

·        8 years of elementary education near their neighborhood;[8]

·        Education for disabled children also.

·        Schools should have adequate infrastructure

·        Stringent criterion for teacher’s qualification

·        No interviews shall be conducted during the selection process for the child or parents.

·        Establishment of primary schools within walking distance of one km of the neighborhood.

·        No segregation in unaided and public schools for disadvantage children.

·        Legally bound duty of Central and State governments to ensure free and compulsory education

·        Free helpline by NCPCR to register complaints will be set up

The Bill also precludes certain aspects like:

·        Physical punishment to children;

·        Expulsion or detention of a child and;

·        Development of teachers for non-educational purposes;

·        Functioning of a school without recognition. [This shall result in penal action]

Criticism

As often addressed by critics the age stipulation made mentioned in the bill depicts about children above six years and below 14 years. It explicitly disregards the application of the Act to children below six years and above 14 years. Furthermore, government had failed to address associated issues like scarcity of educational staff, limitations of infrastructure, proficiency of teaching staff in the present schools etc.

Conclusion

To conclude, India has a long way to go in the field of education to children and weaker society than the rest of the countries in the world. On an analysis of the existing scenario, even though it took a far too long time frame, with the introduction of the RTE Act, India is aiming a revolutionary change in the existing educational system within the country which is highly appreciable though access to primary school still remains subtle even today.

   

Submitted by

Vinitha Prasannan

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[1] Children in India and their Rights by Dr. Savita Bhakhry

[2] Children in India and their Rights by Dr. Savita Bhakhry

[3] http://www.unicef.org/india/children.html

[4] Ibid

[5] Ibid

[6] http://www.indg.in/primary-education/policiesandschemes/right-to-education-bill

[7] http://www.indg.in/primary-education/policiesandschemes/right-to-education-bill

[8] http://www.icbse.com/2010/education-rte-act-2009/

SPAM: Time for legislation in India

SPAM, a few years back was merely considered a nuisance but now it is a major cause of concern among many. Junk mail has become a major problem,studies have indicated it makes up for as much as 50% to 70% of all email. This is up from 7% in 2001.Indian companies are spending millions of dollars on  anti spam e mail technologies in an effort to minimize the impact of spam[1].

$ 8.9 billion is the loss incurred by US corporations in the year 2002 solely due to spamming[2] . Spam[3] is defined as Unsolicited Bulk E-Mail (UBE) or Unsolicited Commercial E-Mail (UCE), often of a commercial nature, sent indiscriminately to multiple mailing lists, individuals, or newsgroups; junk e-mail .In simple terms “spam” mails are e-mail’s sent in bulk and most of such mails are advertisements. The main reason that spam has achieved such a devilish status is because it is used for advertising products, get-rich-quick schemes and other similar fraudulent schemes. Spam is trouble maker not only for the recipients of the message but it also causes hardship on the Internet system and Internet service providers as the costs, such as transmission costs etc, are borne by the carriers and recipients of the messages. Internet usage is at a rise in India, and so is the need for a legislation governing SPAM.

Negative Impact of Spam

The negative impacts of spam are not few but many and these are:

1.      The messages so sent as spam are deceitful and are either partly or are completely fraudulent.

2.      The resources which do not belong to spammers are used by them. When spam is sent through intermediate systems so as to avoid the blocks that many systems have placed, the intermediate systems networks and the disks get laden with unwanted spam.

3.      The content of spam is another issue of concern. Spam mails are usually mails promoting dubious ventures and messages which contain sexually descriptive material.

4.      Spam also causes a significant proportion of e-mail traffic .It is so because spam consumes large amount of network bandwidth, memory, storage space, and other resources. The Internet users and system administrators spend a lot of time in reading, deleting, filtering, and blocking spam.

5.      The spammers also tap into Simple Mail Transfer Protocol[4] (SMTP) Servers and direct them to send copies of a message to a long list of recipients.

Dealing with Spam

Technical mechanisms are used to deal with the menace of spam. These mechanisms are usually implemented by individual Internet users, ISP's and other destination operators, as well as by various third parties, some of which specialize in battling spam and a few are [5]

1.      End User Filtering and Collaborative Filtering[6]

End User filtering entails the recipient simply ignoring unwanted messages while collaborative filtering consists of filtering done by Internet Service Providers (ISP) and proxy filtering services like Brightmail.

2.      Blocking[7]

Blocking involves enabling destination operators to refuse delivery of spam. Many databases sometimes referred to as blacklists or "blackhole lists," list Internet hosts frequented by spammers. Destination operators can use these databases to identify and refuse delivery of selected incoming messages.

3.      Hiding from Spammers[8]

This process involves concealing e-mail addresses by the recipients thus making harder for the spammers.

4.      Opting Out[9]

This procedure involves requesting the spammer to remove the recipient from the mailing list. Of all the measures stated above this is the most ineffective as spammers almost never remove a mail address from their mailing lists.

The technical approaches so being used have not been much successful in eradication of spam and one of the main reason for the same is the inherent openness of the Internet and e-mail protocols. Technical approaches have certain harmful effects on legitimate communications also as blocking e-mail traffic from a spam friendly site often means blocking a great deal of legitimate email[10].

Legal methods

US  ,the European Union and a few other countries have enacted anti-spam legislation. Australia which contributes to about 16% of the total spam in the world has the most stringent spam laws under which spammers may be fined up to $1.1 million a day[11]. Although anti-spam legislations are found all over the world, the methods of combating spam are virtually similar and they are :

1.      Prohibition

2.      Enforcement of Anti-Spam policies

3.      Opt-out clause

4.      Other Statutory Provisions

5.      Enforcement Mechanisms

The number of anti-spam legislations passed all over the world and the penalty given to these spammers are clear evidence of the fact that the International Community has recognized the menace caused by the spam and are ready to take all possible steps to fight it effectively.

India lacks a legislation to govern spam .IT Act of 2000 does not deal with the issue of “spamming” at all. It merely refers to punishment given to a person, who after having secured access to any electronic material without the consent of the person concerned, discloses such electronic material to any other person[12]. Spamming is not considered in the Act[13]. The Delhi High Court acknowledged the absence of appropriate legislation concerning spam in a recent case wherein Tata Sons Ltd and its subsidiary Panatone Finwest Ltd filed a suit against McCoy Infosystems Pvt Ltd for transmission of spam. It was held that in the absence of statutory protection to check spam mails on Internet, the traditional tort law principles of trespass to goods as well as law of nuisance would have to be used[14]. Noted IT expert Mr. Praveen Dalal is of the view that spamming can be treated as violation of privacy under Article 21 of the Constitution and can also be brought under nuisance and trespass under the Indian Penal Code[15].

Conclusion

Internet users are growing in India and so is the number of junk e mail received by people everyday. It is the need of the hour to take all essential measures so that spam does not become a problem of gigantic proportions in India .With the establishment of the Indian arm of the Coalition Against Unsolicited Commercial E-Mails (an International Organization against spam) some efforts are being made to combat the spam menace[16]. But the absence of a legislation in this regard is a serious problem and it needs to be addressed as soon as possible.

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[1]               http://www.spambutcher.com/misc/1.html

[2]               lawspace2.lib.uct.ac.za/dspace/bitstream/2165/.../Lottersberger+2003.pdf

[3]               http://www.answers.com/topic/spam

[4]              SMTP (Simple Mail Transfer Protocol) is a TCP/IP protocol used in sending and receiving e-mail. However, since it is limited in its ability to queue messages at the receiving end, it is usually used with one of two other protocols, POP3 or IMAP, that let the user save messages in a server mailbox and download them periodically from the server. In other words, users typically use a program that uses SMTP for sending e-mail and either POP3 or IMAP for receiving e-mail. On Unix-based systems, sendmail is the most widely-used SMTP server for e-mail. A commercial package, Sendmail, includes a POP3 server. Microsoft Exchange includes an SMTP server and can also be set up to include POP3 support. SMTP usually is implemented to operate over Internet port 25. An alternative to SMTP that is widely used in Europe is X.400. Many mail servers now support Extended Simple Mail Transfer Protocol (ESMTP), which allows multimedia files to be delivered as e-mail.

[5]               citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.64.7023&rep...

[6]               www.cisco.com/web/solutions/.../C11-484492-00_Filtering_wp.pdf -

[7]               www.sans.org/security-resources/vendor.../directories.php?.

[8]               csarven.ca/hiding-email-addresses

[9]              opt-out.cdt.org/

[10]             www.cisco.com/web/about/.../ipj.../anti-spam_efforts.html -

[11]             www.vircom.ch/Can_Laws_Block_Spam.pdf

[12]             www.vakilno1.com/bareacts/informationtechnologyact/informationtechnologyact.htm

[13]             www.vakilno1.com/bareacts/informationtechnologyact/informationtechnologyact.htm

[14]             http://www.legalservicesindia.com/articles/spamli.htm

[15]             http://spicyipindia.blogspot.com/2008/09/tk-spams-and-biopiracy-axil-of-evil.html

[16]             www.cauce.org/