We are at a time when 40% of the world’s population and over 76% of people of developed countries are Internet users in spite it we have not found a universal and standard definition for cyberspace. The internet takes up a major part of our daily life and is actively used and acknowledged for it making our life easier, however, the anonymity characteristic allows malefactors to involve in various cyber crimes. The existence of cybercrime law is to identify and set principles for acceptable behaviour for information and communication technology (ICT) users. It also needs to actively strike a balance between society and laws which can work to prevent people, data, systems, infrastructures and especially human rights. At present, the status of cybercrime law is it provides rule and standard for use of the internet, computer and other technologies. There are also rule contingent to criminal procedure, evidence and criminal justice matters in the cyber world with a vision to scale down the risk to individual or organizations.
Cybercrimes related to defamation of government officers, disrespect for authority and obscenity or pornographic material is an obstacle in exercising human rights. And, in order to tackle such issues, there are procedural provisions of cyberlaw providing us with tools and methods as to how the investigation should be carried which at times facilitate the interception of electronic surveillance which also curbs our human rights such as privacy. Despite knowing that there is a need for investigation and cybercrime control symmetry is yet to be found with respect to human rights. International human right law has provided a free pass to certain restrictions regarding human rights which are termed a lawful restriction. These restrictions are imposed based on national law in accordance with the matter relating to natural security, economic security, health security, protection of morals, and protection of the rights of others. This law should be out in public for them to regulate their behaviour and empathize with the powers to enforce these laws. At times, unspecific references are given under the name of “national security”, “terrorism” which are vague and unjustified and are not clear laws. The laws which are required should be useful, reasonable and desirable and they must not just be on paper but also achievable by the state. It is rightly said by The United Nations Human Rights Council (UNHRC) that the rights which are protected offline must also be protected online with regard to freedom of expression. Policymakers have brought several national policies with the intent to protect Internet and other information communication technologies (ICT) systems against malicious practices on the digital platform. Despite these policies made in goodwill it sometimes feels unjust and lack clear checks and balances or hampers the democratic instrument, which leads to abuse of human rights. For instances, in today’s time under the name of cybersecurity law authorities monitor communications and often go to an extent of criminalizing online users for expressing their views.
As we are in the digital age, human rights analogous to the same is debated openly and usually, we can see news and cases on human rights violation and privacy of citizens are at stake with a recent upgrade in cyberspace. These include freedom of expression and sexual harassment through the internet i.e., cyberbullying, cyber racism, cyber homophobia. The digital space has now opened up new prospects and medium for the realization of the right to freedom of expression because the internet provides speed, worldwide reach and anonymity. If we go through ICCPR Article 19(3) there are some permissible limitations on the rights provided under Article 19 (2) which are regarding respect for rights and reputation, freedom from discrimination, the cruel, inhuman and degrading treatment also Right to privacy with respect to honour and reputation.
Cybersecurity breaches the human rights of freedom to speech and expression, right to privacy, freedom of opinion and also free flow of communication. The state explains security as protecting itself from political instability, applies measures to ensure the preservation of the state and its policies. As we may have come across certain restrictions and guidelines regarding what we can post, discuss or write on such platforms because most often cybersecurity laws can be a remedy to censor and monitor such communications. Government officials have access to track user’s communication at any point of time whenever suspicion arises which directly violates human right given by UHDR or countries own law. The case which started this discussion was the Shreya Singhal vs. Union of India, where 2 girls were arrested by the Mumbai Police for expressing their displeasure against a strike by Shiv Sena on Shiv Sena chief’s death on social media which involved comments on Facebook by them. The question raised here was whether Section 66A of the Information Technology Act violating the fundamental right of freedom of speech and expression. The court concluded that Section 66A is not restrictive in nature and should be read with an open mind and not covered under Section 19 (2) of the Indian Constitution. Section 66A actually had no proximity or link with causing disturbance to public order or with incitement to commit an offence and hence it was struck down by the court. The approach adopted by the court was to protect the fundamental right of freedom of speech and expression and in no way the legislation can take away this right by claiming the shield under Article 19(2) of the Constitution.
There is no denying that there is an existence of cyber law to stop cybercrime in India but somehow we fail at implementing them. Hackers are always a step ahead with their new techniques to surpass all the cybersecurity and hack data of prime importance. Also, the development of laws, policy and norms on cybersecurity takes place in a securitized setting that does not focus on civil society or human rights. The most crucial point to understand here is cyber insecurity should never be dealt with by violating human rights. Instead, we should recognize that the protection of human rights should by the centre while forming cybersecurity policies. After all this, there is a possibility of protecting human rights and collaterally fighting against cybercrime.
