| FINAL REPORT
ON THE LAW OF INFORMATION TECHNOLOGY
PDF version of Final Report on The Law of Information
Technology
Introductory
After the invention of
computers and improvement in digital technology and
communication systems dramatic changes have taken place in
our lives. Business transactions are being made with the
help of computers. Computers are being increasingly used
by the business community and individuals to create,
transmit and store information in the electronic form
instead of traditional paper documents. Information stored
in electronic form is easier, cheaper, much less
time-consuming and less cumbersome than storage in paper
documents. Information stored in electronic form is also
easier to retrieve and speedier to communicate. In spite
of all these advantages and although they are aware of
these advantages people in our country are reluctant to
conduct business or conclude transactions in electronic
form due to lack of legal framework. At present, many
legal provisions (such as the Evidence Act, 1872, the
Penal Code, 1860. the Banker’s Books Evidence Act, 1891,
etc.) recognise paper based records and documents bearing
signatures of parties and make them admissible in evidence
in various disputes. Electronic commerce eliminates the
need for such paper based transactions and as such,
transactions in electronic form are often not recognised
in courts thereby retarding the growth of electronic
commerce. Many legal rules assume the existence of paper
records and documents, signed records, original records,
physical cash, cheques, face to face meetings, etc. As
more and more activities to-day are carried out by
electronic means, it becomes more and more important that
evidence of these activities be available to demonstrate
legal rights and obligations that flow from them. As such,
in order to facilitate electronic commerce, there is a
need for a legal framework and also for legal changes. In
1996, the United Nations Commission on International Trade
Law (UNCITRAL) adopted Model Law on electronic commerce
known as the UNCITRAL Model Law on Electronic Commerce
hereinafter referred to as the Model Law.
The Model Law establishes rules and norms that validate and
recognize contracts formed through electronic means, sets
default rules for contract formation and governance of
electronic contract performance, defines the characteristics
of a valid electronic writing and an original document,
provides for the acceptability of electronic signatures for
legal and commercial purposes and supports the admission of
computer evidence in courts and arbitration proceedings. The
Model Law does not have any force but merely serves as a
model to countries for the evaluation and modernization of
certain aspects of their laws and practices in the field of
communication involving the use of computerized or other
modern techniques, and for the establishment of relevant
legislation where none exists.
In the above context, it is proposed to suggest enactment of
a suitable law to facilitate electronic commerce and to
encourage growth and development of information technology.
Necessarily, such law has to be in conformity with the Model
Law.
Singapore enacted Electronic Transactions Act, 1998 and
India recently enacted the Information Technology Act, 2000.
The objectives of the proposed legislation are to give
effect to the following purposes:-
(a)
to facilitate
electronic communications by means of reliable electronic
records;
(b)
to facilitate
electronic commerce, eliminate barriers to electronic
commerce resulting from uncertainties over writing and
signature requirements, and to promote the development of
the legal and business infrastructure necessary to implement
secure electronic commerce;
(c)
to facilitate
electronic filing of documents with government agencies and
statutory corporations, and to promote efficient delivery of
government services by means of reliable electronic records;
(d)
to minimise the
incidence of forged electronic records, intentional and
unintentional alteration of records, and fraud in electronic
commerce and other electronic transactions;
(e)
to help to
establish uniformity of rules, regulations and standards
regarding the authentication and integrity of electronic
records; and
(f)
to promote
public confidence in the integrity and reliability of
electronic records and electronic commerce, and to foster
the development of electronic commerce through the use of
electronic signatures to lend authenticity and integrity to
correspondence in any electronic medium.
While preparing this report
proposing enactment of a law on electronic commerce the
following matters are, therefore, required to be addressed
in order to achieve the above purposes:-
1)
Applicability of
the Act;
2)
The “Functional
Equivalent” approach;
3)
Electronic
documents and electronic contracts;
4)
Electronic
governance;
5)
Electronic
signatures;
6)
The technology
for electronic signatures;
7)
Liability and
risk allocation in a Public Key Infrastructure (PKI);
8)
Procedural
aspects of PKI;
9)
Contraventions;
10)Cyber Regulations Appellate
Tribunal (CRAT);
11)Information technology
offences;
12)Investigation, search and
seizure;
13)Limited liability of
Network Services Providers;
14)Cyber Regulations Advisory
Committee;
15)Amendment/ repeal, etc., of
related enactments.
Article 1 of the Model Law
defines the sphere of application of the law as follows:-
“This Law applies to any kind
of information in the form of a data message used in the
context of commercial activities.”
While limiting the
applicability of the law to data messages in the context of
only “commercial activities”, in the substantive part of the
Model Law, the United Nations Commission on International
Trade Law (UNCITRAL) hereinafter referred to as the
Commission made various alternative suggestions such as, it
suggested for the states which might wish to limit the
applicability of the Act to only international data messages
the following text:- “The Law applies to a data message
where the data message relates to international commerce”;
and for the states that might wish to extend the
applicability of the law, the following text:- “This Law
applies to any kind of information in the form of data
message, except in the following situations:”
The Commission also suggested
to give the word “commercial” occurring in Article 1 of the
Model Law the widest possible interpretation in order to
include every conceivable transaction of a commercial
nature.
On due consideration, it
appears to us that the applicability of the Act need not be
limited by using the term “commercial” as in Article 1 of
the Model Law. The applicability should be wide enough and
this purpose can be achieved by simply excluding certain
matters specifically from its jurisdiction. In her
Information Technology Act, 2000, India has excluded
documents relating to the following five specific matters
from the jurisdiction of the Act and has also authorized the
Government to exclude any other documents: (1) negotiable
instruments, (2) powers of attorney, (3) trusts, (4) wills,
(5) contracts for the sale or conveyance of immovable
property and (6) any other documents or transactions as the
Government may notify and except the above, the Act applies
to all circumstances, types of transactions and documents.
The Indian Act also extends the applicability relating to
offences and contraventions beyond her territories.
It also overrides all other laws in force in India.
In Singapore, the
corresponding law is the Electronic Transactions Act, 1998.
Following the second alternative suggestion made by the
Commission in the Model Law, Singapore also sought to widen
the applicability of the law by excluding the following
transactions from the operation of the law:- (a) wills; (b)
negotiable instruments; (c) the creation, performance or
enforcement of an indenture, declaration of trust or power
of attorney with the exception of constructive and resulting
trusts; (d) contract for the sale or other disposition of
immovable property, or any interest in such property; (e)
the conveyance of immovable property or the transfer of any
interest in immovable property; (f) documents of title and
also authorised the Government to add, delete or amend any
class of transactions or matters.
It appears to us that in some respects the Indian provisions
and in some respects the Singapore provisions regarding the
applicability of the law are precise and clear. After taking
into consideration the provisions and suggestions in the
Model Law and the provisions of the Indian and the Singapore
enactments we propose the short title, commencement, extent
and applicability of the proposed Act as follows:-
Chapter I
PRELIMINARY
“1.
Short title, extent and commencement.- (1) This Act may
be called the Information Technology (Electronic
Transaction) Act, 20----------.
(2) It shall extend to the whole of Bangladesh and, save as
otherwise expressly provided in this Act, also to any
offence or contravention thereunder committed outside
Bangladesh by any person.
(3) It shall come into force on such date as the Government
may, by notification in the Official Gazette, appoint.
“2.
Application.- (1) Nothing in this Act shall apply to-
(a)
a negotiable
instrument as defined in section 13 of the Negotiable
Instruments Act, 1881 (Act No. XXVI of 1881);
(b)
the creation,
performance or enforcement of a power of attorney;
(c)
a trust as
defined in section 3 of the Trusts Act, 1882 (Act No. II of
1882);
(d)
a will as
defined in clause (h) of section 2 of the Succession Act,
1925 (Act No. XXXIX of 1925) and any other testamentary
disposition by whatever name called;
(e)
any contract for
the sale or other disposition of immovable property, or any
interest in such property;
(f)
the conveyance
of immovable property or the transfer of any interest in
immovable property; and
(g)
title-deeds of
immovable property;
(2) The Government may, by
notification in the Official Gazette, modify the provisions
of sub-section (1) of this section by adding, deleting or
amending any class of transactions or matters.”
Next comes interpretation of
various terms and expressions to be used in the proposed
Act. Some of these terms are technical in nature. Some of
the terms used in the Indian enactment exactly correspond
with similar terms used in the Singapore enactment. Some
terms have been defined as proposed in the Model Law. After
taking into considerations the interpretations in the Model
Law, the Indian enactment and the Singapore enactment, we
propose to suggest the interpretation of various terms as
follows:-
“3.
Definitions.- In this Act, unless the context otherwise
requires,-
(a)
“access” means
gaining entry into, instructing or communicating with the
logical, arithmetical or memory function resources of a
computer, computer system or computer network;
(b)
“act” has the
same meaning as in the Penal Code, 1860 (Act XLV of 1860);
(c)
“addressee”
means a person who is intended by the originator to receive
the electronic record but does not include any intermediary;
(d)
“adjudicating
officer” means an adjudicating officer appointed under
sub-section (1) of section 50 of this Act;
(e)
“affixing
digital signature” means adoption of any methodology or
procedure by a person for the purpose of authenticating an
electronic record by means of digital signature;
(f)
“asymmetric
cryptosystem” means a system capable of generating a secure
key pair consisting of a private key for creating a digital
signature and a public key to verify the digital signature;
(g)
“Certifying
Authority” means a person who has been granted a licence
under section 25 of this Act to issue a Digital Signature
Certificate;
(h)
“certification
practice statement” means a statement issued by a Certifying
Authority to specify the practices that the Certifying
Authority employs in issuing Digital Signature Certificates;
(i)
“computer” means
any electronic, magnetic, optical or other high-speed data
processing device or system which performs logical,
arithmetical and memory functions by manipulations of
electronic, magnetic or optical impulses, and includes all
input, output, processing, storage, computer software or
communication facilities which are connected or related to
the computer in a computer system or computer network;
(j)
“computer
network” means the interconnection of one or more computers
through-
(i) the use of satellite,
microwave, terrestrial line or other communication media;
and
(ii) terminals or a complex
consisting of two or more interconnected computers whether
or not the interconnection is continuously maintained;
(k)
“computer
resource” means computer, computer system, computer network,
data, computer database or software;
(l)
“computer
system” means a device or collection of devices, including
input and output support devices and excluding calculators
which are not programmable and capable of being used in
conjunction with external files which contain computer
programmes, electronic instructions, input data and output
data that performs logic, arithmetic, data storage and
retrieval, communication control and other functions;
(m)
“Controller”
means the Controller of Certifying Authorities appointed
under sub-section (1) of section 18 of this Act;
(n)
“Cyber Appellate
Tribunal” means the Cyber Appellate Tribunal established
under sub-section (1) of section 52 of this Act;
(o)
“data” means a
representation of information, knowledge, facts, concepts or
instructions which are being prepared or have been prepared
in a formalised manner, and is intended to be processed, is
being processed or has been processed in a computer system
or computer network, and may be in any form (including
computer printouts, magnetic or optical storage media,
punched cards, punched tapes) or stored internally in the
memory of the computer;
(p)
“digital
signature” means authentication of any electronic record by
a subscriber by means of an electronic method or procedure
in accordance with section 4 of this Act;
(q)
“Digital
Signature Certificate” means a certificate issued under
sub-section (1) of section 36 of this Act;
(r)
“electronic
form”, with reference to information, means any information
generated, sent, received or stored in media, magnetic,
optical, computer memory, microfilm, computer generated
microfiche or similar device;
(s)
“Electronic
Gazette” means the Official Gazette published in the
electronic form;
(t)
“electronic
record” means data, record or data generated, image or sound
stored, received or sent in an electronic form or microfilm
or computer generated microfiche;
(u)
“function”, in
relation to a computer, includes logic, control,
arithmetical process, deletion, storage and retrieval and
communication or telecommunication from or within a
computer;
(v)
“hash function”
means an algorithm mapping or translating one sequence of
bits into another, generally smaller, set known as the “hash
result” such that –
(i) an electronic record
yields the same hash result every time the algorithm is
executed using the same electronic record as input;
(ii) it is computationally
infeasible that an electronic record can be derived or
reconstituted from the hash result produced by the
algorithm;
(iii) it is computationally
infeasible that two electronic records can be found that
produce the same hash result using the algorithm;
(w)
“information”
includes data, text, images, sound, voice, codes, computer
programmes, software, databases, microfilm, or computer
generated microfiche;
(x)
“intermediary”,
with respect to any particular electronic message, means any
person who on behalf of another person receives, stores or
transmits that message or provides any service with respect
to that message;
(y)
“key pair”, in
an asymmetric cryptosystem, means a private key and its
mathematically related public key, having the property that
the public key can verify a digital signature created by the
private key;
(z)
“law” includes
any Act of Parliament, Ordinances promulgated by the
President and rules, regulations, bye-laws, notifications or
other legal instruments having the force of law;
(za) “licence” means a licence
granted to a Certifying Authority under section 25 of this
Act;
(zb) “offence” denotes an
act made punishable under any law for the time being in
force in Bangladesh;
(zc) “originator” means a
person who sends, generates, stores or transmits any
electronic message or causes any electronic message to be
sent, generated, stored or transmitted to any other person
but does not include an intermediary;
(zd) “prescribed” means
prescribed by rules made under this Act;
(ze) “private key” means
the key of a key pair used to create a digital signature;
(zf) “public key” means
the key of a key pair used to verify a digital signature and
listed in a Digital Signature Certificate;
(zg) “secure system” means
computer hardware, software, and procedure that –
(i) are
reasonably secure from unauthorised access and misuse;
(ii)
provide a reasonable level of reliability and correct
operation;
(iii) are
reasonably suited to performing the intended functions; and
(iv)adhere
to generally accepted security procedures;
(zh) “security procedure”
means a procedure prescribed by the Government under section
17 of this Act for the purpose of –
(i)
verifying that an electronic record is that of a specific
person; or
(ii) detecting error or
alteration in the communication, content or storage of an
electronic record since a specific point of time,
which may
require the use of algorithms or codes, identifying words or
numbers, encryption, answer back or acknowledgement
procedures, or similar security devices;
(zi) “sign” has the same
meaning as in clause (52) of section 3 of the General
Clauses Act, 1897 (Act No. X of 1897) and also includes any
symbol executed or adopted, or any methodology or procedure
employed or adopted, by a person with the intention of
authenticating a record, including electronic or digital
methods and the expression “signature” shall be construed
accordingly;
(zj) “subscriber” means a
person in whose name the Digital Signature Certificate is
issued and who holds a private key that corresponds to a
public key listed in that Digital Signature Certificate;
(zk) “verify”, in relation
to a digital signature, electronic record or public key,
with its grammatical variations and cognate expressions,
means to determine accurately whether –
(a)
the initial
electronic record was affixed with the digital signature by
the use of the private key corresponding to the public key
of the subscriber;
(b)
the initial
electronic record is retained intact or has been altered
since such electronic record was so affixed with the digital
signature”.
In the next sections,
provisions may be made for legal recognition of electronic
records, digital signatures, authentication of electronic
records, etc. In Singapore, firstly, provisions have been
made for legal recognition of electronic records specifying
that information shall not be denied legal recognition,
legal effect, validity or enforceability solely on the
ground that the information is in the form of an electronic
record. The Singapore law further provides that if any law
requires any information to be in writing, that requirement
is fulfilled if it is in an electronic record.
India has made similar provisions.
Singapore derived the principles of the above provisions
from the Model Law.
In this respect, Singapore has adopted the language of the
Model Law to a large extent. India’s formulation is somewhat
different but the principles embodied are the same as in the
Model Law. Similar provisions have been made regarding
digital signatures in both Singapore law and the Indian law
following the Model Law.
For incorporating the above principles we like to propose
the following provisions:-
Chapter II
DIGITAL SIGNATURE &
ELECTRONIC RECORDS
“4.
Authentication of electronic records by digital signature.-
(1) Subject to the provisions of this section, any
subscriber may authenticate an electronic record by affixing
his digital signature.
(2) The authentication of the electronic record shall be
effected by the use of asymmetric cryptosystem and hash
function which envelop and transform the initial electronic
record into another electronic record.
(3) Any person by the use of a public key of the subscriber
can verify the electronic record.
(4) The private key and the public key are unique to the
subscriber and constitute a functioning key pair.
5. Legal
recognition of electronic records.- Where any law
requires any information or matter to be written, in writing
or in the typewritten or printed form or provides for
certain consequences if it is not, then notwithstanding such
law, such requirement shall be deemed to have been met if
such information or matter is rendered in an electronic
form:
Provided that the information
or matter is accessible so as to be usable for a subsequent
reference.
6. Legal
recognition of digital signatures.- Where any law
requires that information or any matter shall be
authenticated by affixing the signature or any document
shall be signed or bear the signature of any person or
provides for any consequences if it is not, then,
notwithstanding any such law, such requirement shall be
deemed to have been met, if such information or matter is
authenticated or such document is signed by means of digital
signature affixed in such manner as may be prescribed by the
Government.”
The next provision may provide for recognition and
acceptance of electronic records and electronic signatures
in various government offices, agencies, etc. because, in
various existing laws there are mandatory provisions for
filing, recognition and acceptance of applications, forms,
etc. in specified manner and also for issuance of licence,
orders, permits, sanctions, etc. by governmental authorities
in specified manner. The purpose of the proposed enactment
will be largely frustrated if, notwithstanding the existing
laws, enabling provision is not made regarding the
electronic records and electronic signatures for their
acceptance, recognition, etc. in government offices. We,
accordingly, propose the following provision:-
“7. Use
of electronic records and digital signatures in Government
and its agencies.- (1) Where any law requires-
(a)
the filing of
any form, application or any other document with any office,
body, authority or agency owned or controlled by the
Government in a particular manner;
(b)
the issue or
grant of any licence, permit, sanction, approval or order by
whatever name called in a particular manner;
(c)
the receipt or
payment of money in a particular manner,
then,
notwithstanding anything contained in any other law for the
time being in force, such requirement shall be deemed to
have been satisfied if such filing, issue, grant, receipt or
payment, as the case may be, is effected by means of such
electronic form as may be prescribed by the Government.
(2) The Government may, for the purposes of sub-section (1)
of this section, by rules, prescribe-
(a)
the manner and
format in which such electronic records shall be filed,
created or issued;
(b)
the manner or
method of payment of any fee or charges for filing, creation
or issue of any electronic record under clause (a) of this
sub-section.”
Under various laws and rules
modes have been prescribed for retention and preservation of
records and documents in various offices, courts,
organisations, etc. and by individuals. Similarly,
provisions are required to be made for retention and
preservation of electronic records as well. We, accordingly,
propose the following provision:-
“8.
Retention of electronic records.- (1) Where any law
requires that any documents, records or information shall be
retained for any specific period, then such requirement
shall be deemed to have been satisfied if such documents,
records or information, as the case may be, are retained in
the electronic form if the following conditions are
satisfied:-
(a)
the information
contained therein remains accessible so as to be usable for
subsequent reference;
(b)
the electronic
record is retained 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)
such
information, if any, as enables the identification of the
origin and destination of an electronic record and the date
and time when it was sent or received, is retained;
Provided that this clause does
not apply to any information which is automatically
generated solely for the purpose of enabling an electronic
record to be despatched or received.
(2) A person may satisfy the
requirements referred to in sub-section (1) of this section
by using the services of any other person, if the conditions
in clauses (a) to (c) of that sub-section are complied with.
(3) Nothing in this section
shall apply to any law which expressly provides for the
retention of documents, records or information in the form
of electronic records.”
In clause (s) of section 3 of
this Act we have defined “Electronic Gazette” attributing to
it the same meaning as the “Official Gazette” as defined in
clause (37 a) of section 3 of the General Clauses Act, 1897.
In this Act, there must, therefore, be a provision giving
the same status to all publications in the Official Gazette.
India has made such provision.
In this respect, we propose the following provision:-
“9.
Electronic Gazette.- Where any law requires that any
law, rule, regulation, order, bye-law, notification or any
other matter shall be published in the Official Gazette,
then, such requirement shall be deemed to have been
satisfied if such law, rule, regulation, order, bye-law,
notification or any other matter is published in the
Official Gazette or the Electronic Gazette:
Provided that where any law, rule, regulation, order,
bye-law, notification or any other matter is published in
the Official Gazette or the Electronic Gazette, the date of
publication shall be deemed to be the date of the Gazette
which was first published in any form.”
In the Indian Act a provision has been made to the effect
that notwithstanding the provisions proposed in sections 7,
8 and 9 above, no person shall have the right to compel the
Government or any agency of the Government or any authority
or body established by any law or controlled or funded by
the Government to accept, issue, create, retain and preserve
any document in the form of electronic records. In other
words, the Government has been given the alternative right
to perform transactions in the existing ordinary form. This
provision is necessary as electronic transactions are new in
this country and many Government departments still lack the
logistics to perform transactions in electronic form. In
this context, the Indian provision may be adopted. It is,
accordingly, proposed as follows:-
“10. No
liability on Government to accept documents in electronic
form.- Nothing contained in this Act shall by itself
compel any Ministry or Department of the Government or any
authority or body established by or under any law or
controlled or funded by the Government to accept, issue,
create, retain and preserve any document in the form of
electronic records or effect any monetary transaction in the
electronic form.”
Next, the Government may be empowered to make rules in
respect of certain matters of digital signatures.
“11.
Power of Government to make rules in respect of digital
signatures.- The Government may, by notification in the
Official Gazette, make rules to prescribe for the purposes
of this Act-
(a)
the type of
digital signature;
(b)
the manner and
format in which the digital signature shall be affixed;
(c)
the manner or
procedure which facilitates identification of the person
affixing the digital signature;
(d)
the control
processes and procedures to ensure adequate integrity,
security and confidentiality of electronic records or
payments; and
(e)
any other matter
which is necessary to give legal effect to digital
signatures.”
Next comes the concept of
attribution. Very often, data messages are generated
automatically by computers without direct human
intervention. The computers are programmed by the originator
to do this. In the case of a paper-based communication a
problem may arise as the result of an alleged forged
signature of the purported originator. In an electronic
environment, an unauthorised person may have sent the
message but the authentication by code or like manner would
be accurate. There should, therefore, be provision laying
down the criteria or principles of attribution establishing
a presumption that under certain circumstances a data
message would be considered as a message of the originator.
There should also be provision to qualify the presumption in
case the addressee knew or ought to have known that the data
message was not that of the originator. The principles of
attribution as laid down in the UNCITRAL Model Law are as
follows:-
(a)
A data message
is considered to be that of the originator if it was sent by
the originator itself.
(b)
As between the
originator and the addressee, a data message is deemed to be
that of the originator if it was sent (i) by a person who
had the authority to act on behalf of the originator in
respect of that data message; or (ii) by an information
system programmed by, or on behalf of, the originator
automatically.
(c)
As between the
originator and the addressee, an addressee is entitled to
regard the data message as being that of the originator, and
to act on that assumption if (i) in order to ascertain
whether the data message was that of the originator, the
addressee properly applied a procedure previously agreed to
by the originator for that purpose; or (ii) the data message
as received by the addressee resulted from the actions of a
person whose relationship with the originator or with any
agent of the originator enabled that person to gain access
to a method used by the originator to identify data messages
as its own.
In the Model Law certain
exceptions have been made to the above rules.
In Singapore, the principles
laid down in the Model Law have been adopted almost in
verbatim.
India has adopted the
principles of the Model law in part and without the
exceptions. It appears that only paras 1 and 2 of Article 13
of the Model Law have been adopted by India.
It appears to us that the
entire principles of the Model Law may be adopted as in
Singapore.
So, the next provision may be
as follows:-
Chapter III
ATTRIBUTION,
ACKNOWLEDGEMENT AND
DESPATCH OF ELECTRONIC
RECORDS
“12.
Attribution.- (1) An electronic record shall be that of
the originator if it was sent by the originator himself.
(2) As between the originator and the addressee, an
electronic record shall be deemed to be that of the
originator if it was sent-
(a)
by a person who
had the authority to act on behalf of the originator in
respect of that electronic record; or
(b)
by an
information system programmed by or on behalf of the
originator to operate automatically.
(3) As between the originator
and the addressee, an addressee shall be entitled to regard
an electronic record as being that of the originator and to
act on that assumption if-
(a)
in order to
ascertain whether the electronic record was that of the
originator, the addressee properly applied a procedure
previously agreed to by the originator for that purpose; or
(b)
the information
as received by the addressee resulted from the actions of a
person whose relationship with the originator or with any
agent of the originator enabled that person to gain access
to a method used by the originator to identify the
electronic records as its own.
(4) Sub-section (3) of this
section shall not apply-
(a)
from the time
when the addressee has received notice from the originator
that the electronic record is not that of the originator,
and had reasonable time to act accordingly;
(b)
in such case as
in clause (b) of section (3) of this section, at any time
when the addressee knew or ought to have known, after using
reasonable care or using any agreed procedure, that the
electronic record was not that of the originator; or
(c)
if, in all
circumstances of the case, it is unconscionable for the
addressee to regard the electronic record as being that of
the originator or to act on that assumption.
(5) Where an electronic record
is that of the originator or is deemed to be that of the
originator, or the addressee is entitled to act on that
assumption, then, as between the originator and the
addressee, the addressee shall be entitled to regard the
electronic record received as being what the originator
intended to send, and to act on that assumption:
Provided that the addressee
shall not be so entitled when the addressee knew or should
have known, after exercising reasonable care or using any
agreed procedure, that the transmission resulted in any
error in the electronic record as received.
(6) The addressee shall be
entitled to regard each electronic record received as
separate electronic record and to act on that assumption,
except to the extent that the addressee duplicates another
electronic record and the addressee knew or should have
known, after exercising reasonable care or using any agreed
procedure, that the electronic record was a duplicate.”
The next provision should deal
with acknowledgement of receipt of electronic records. The
principles of acknowledgement of receipt of electronic
records or data message have been laid down in the Model law
and India and Singapore have adopted these principles.
Following the principles laid down in the Model Law, we
propose the next provision as follows:-
“13. Acknowledgement of
receipt.- (1) Sub-sections (2) (3) and (4) of this
section shall apply where, on or before sending an
electronic record, or by means of that electronic record,
the originator has requested or has agreed with the
addressee that receipt of the electronic record be
acknowledged.
(2) Where the originator has not agreed with the addressee
that the acknowledgement be given in a particular form or by
a particular method, an acknowledgement may be given by –
(a)
any
communication by the addressee, automated or otherwise; or
(b)
any conduct of
the addressee, sufficient to indicate to the originator that
the electronic record has been received.
(3) Where the originator has
stipulated that the electronic record shall be conditional
on receipt of the acknowledgement, then, until the
acknowledgement has been received, the electronic record
shall be deemed to have been never sent by the originator.
(4) Where the originator has
not stipulated that the electronic record shall be
conditional on receipt of the acknowledgement, and the
acknowledgement has not been received by the originator
within the time specified or agreed or, if no time has been
specified or agreed, within a reasonable time, the
originator-
(a)
may give notice
to the addressee stating that no acknowledgement has been
received and specifying a reasonable time by which the
acknowledgement must be received; and
(b)
if no
acknowledgement is received within the time specified in
clause (a) of this sub-section, may, after giving notice to
the addressee, treat the electronic record as though it has
never been sent.
(5) Where the originator
receives the addressee’s acknowledgement of receipt, it
shall be presumed that the related electronic record was
received by the addressee, but that presumption shall not
imply that the content of the electronic record corresponds
to the content of the record received.
(6) Where the received
acknowledgement states that the related electronic record
met technical requirements, either agreed upon or set forth
in applicable standards, it shall be presumed that those
requirements have been met.”
For the operation of many
existing laws, it is important to ascertain the time and
place of despatch and receipt of information. The use of
electronic communication techniques makes these difficult to
ascertain. In addition, the location of certain
communication systems may change without either of the
parties being aware of the change. Therefore, the proposed
Act should reflect the fact that the location of information
systems is irrelevant and should set forth a more objective
criterion, namely, the place of business of the parties. The
proposed Act should, therefore, define the time of despatch
of an electronic record as the time when the electronic
record enters the computer resource outside the control of
the originator which may either be the computer resource of
an intermediary or a computer resource of the addressee. For
determining the time of receipt also the proposed Act should
lay down some principles.
In the Model Law the
principles regarding the time, place of despatch of
electronic records and place of receipt of electronic
records have been laid down.
India and Singapore have exactly followed the principles of
the Model Law. Bangladesh has no reason to make a departure.
We, accordingly, propose the provisions regarding the time
and place of despatch and receipt of electronic records as
follows:-
“14.
Time and place of despatch and receipt of electronic
record.- (1) Save as otherwise agreed to between the
originator and the addressee, the despatch of an electronic
record occurs when it enters a computer resource outside the
control of the originator.
(2) Save as otherwise agreed to between the originator and
the addressee, the time of receipt of an electronic record
shall be determined as follows, namely:-
(a)
if the addressee
has designated a computer resource for the purpose of
receiving electronic records, receipt occurs,-
(i) at the time when the
electronic record enters the designated computer resource;
or
(ii) if the electronic record
is sent to a computer resource of the addressee that is not
designated computer resource, at the time when the
electronic record is retrieved by the addressee;
(b)
if the addressee
has not designated a computer resource along with specified
timings, if any, receipt occurs when the electronic record
enters the computer resource of the addressee.
(3) Save as otherwise agreed
to between the originator and the addressee, an electronic
record is deemed to be despatched at the place where the
originator has his place of business, and is deemed to be
received at the place where the addressee has his place of
business.
(4) The provisions of
sub-section (2) of this section shall apply notwithstanding
that the place where the computer resource is located may be
different from the place where the electronic record is
deemed to have been received under sub-section (3) of this
section.
(5) For the purposes of this
section,-
(a)
if the
originator or the addressee has more than one place of
business, the principal place of business shall be the place
of business;
(b)
if the
originator or the addressee does not have a place of
business, his usual place of residence shall be deemed to be
the place of business;
Explanation.- “usual place of
residence”, in relation to a body corporate, means the place
where it is registered.”
In the next place, we propose
to deal with secure electronic records and digital
signatures. Normal and conventional handwritten signatures
may perform various functions such as:-
(a)
to identify a
person;
(b)
to provide
certainty and proof as to the involvement of a person in the
act of signing;
(c)
to associate and
connect the signer with the contents of a document;
(d)
to establish the
signer’s intention that something has legal effect; or
(e)
to show the
intent of a person to associate himself with the content of
a document written by someone else.
So, an electronic or a digital
signature should be so designed as to be able to achieve all
the above objects of conventional paper based signatures and
should be “functional equivalent” of conventional
signatures. There must be a proper security method for
ensuring the acceptability of an electronic signature. The
following factors are required to be taken into account in
determining whether the security method used for an
electronic signature is appropriate, legal, technical and
commercial:- (a) the sophistication of the equipment used by
each of the parties; (b) the nature of their trade activity;
(c) the frequency at which commercial transactions take
place between the parties; (d) the kind and size of the
transaction; (e) the function of signature requirements in a
given regulatory and statutory environment; (f) the
capability of communication systems; (g) compliance with
authentication procedures set forth by intermediaries; (h)
the range of authentication procedures made available by the
intermediary; (i) compliance with trade customs and
practice; (j) the existence of insurance coverage mechanisms
against unauthorised messages; (k) the importance and the
value of the information contained in the electronic record;
(l) the availability of alternative methods of
identification and the cost of implementation; (m) the
degree of acceptance or non-acceptance of the method of
identification in the relevant industry or field both at the
time the method was agreed upon and the time when the
electronic record was communicated and (n) any other
relevant factor. In order to achieve the basic purposes of
signatures, the following effects are needed:- (a) signature
authentication; (b) document authentication i.e. a signature
should identify what is signed and make it impracticable to
falsify or alter either the signed matter or the signature;
(c) affirmative act i.e. to serve the ceremonial and
approval functions of a signature, a person should be able
to create a signature to mark an event, indicate approval
and authorisation and establish the sense of having legally
consummated a transaction and (d) efficiency i.e. optimally,
a signature and its creation and verification processes
should provide the greatest possible assurance of
authenticity and validity with the least possible
expenditure of resources.
In the following sections
provisions are proposed to reflect the above principles:-
Chapter IV
SECURE ELECTRONIC RECORDS &
SECURE DIGITAL SIGNATURES
“15.
Secure electronic record.- Where any security procedure
has been applied to an electronic record at a specific point
of time, then such record shall be deemed to be a secure
electronic record from such point of time to the time of
verification.
16.
Secure digital signature.- If, by application of a
security procedure agreed to by the parties concerned, it
can be verified that a digital signature, at the time it was
affixed, was-
(a)
unique to the
person affixing it;
(b)
capable of
identifying the person affixing it;
(c)
created in a
manner or using a means under the sole control of the person
affixing it; and
(d)
is linked to the
electronic record to which it relates in such a manner that
if the electronic record was altered the digital signature
would be invalidated,
then such
digital signature shall be deemed to be a secure digital
signature.
17.
Security procedure.- The Government shall, for the
purposes of this Act, prescribe the security procedure
having regard to commercial circumstances prevailing at the
time when the procedure was used, including –
(a)
the nature of
the transaction;
(b)
the level of
sophistication of the parties with reference to their
technological capacity;
(c)
the volume of
similar transactions engaged in by other parties;
(d)
the availability
of alternatives offered to but rejected by any party;
(e)
the cost of
alternative procedures; and
(f)
the procedures
in general use for similar types of transactions or
communications.”
The next provisions should
deal with certifying authorities. A certifying authority can
be defined as an authority whose functions are to:-
(a)
reliably
identify persons applying for signature key certificates;
(b)
reliably verify
their legal capacity;
(c)
confirm the
attribution of a public signature key to an identified
physical person by means of a signature key certificate;
(d)
always maintain
the on-line access to the signature key certificates with
the agreement of the signature key owner; and
(e)
take measures so
that the confidentiality of a private signature key is
guaranteed.
Some of the services which a
certifying authority may provide can be:-
(a)
managing
cryptographic keys used for digital signatures;
(b)
certifying that
a public key corresponds to a private key;
(c)
providing keys
to end users;
(d)
deciding which
users will have which privileges on the system;
(e)
publishing a
secure directory of public keys or certificates;
(f)
managing
personal tokens (e.g. smart cards) that can identify the
user with unique personal identification information or can
generate or store an individual’s private keys;
(g)
checking the
identification of end users and providing them with
services;
(h)
providing
non-repudiation services;
(i)
providing
time-stamping services; and
(j)
managing
encryption keys used for confidentiality encryption where
the use of such a technique is authorised.
In many countries certifying
authorities are organised hierarchically and is technically
named public key infrastructure (PKI). We propose to follow
the same structure of certifying authorities. In the next
place, the certifying authorities are required to maintain
certain requirements, such as, independence, internal
security, longevity, financial resources, legal service,
contingent plan, proved experience and proficiency in
information technology, particularly, in encryption and
decryption technologies and familiarity with security
procedures, protection arrangement for its own private key,
revocation procedures, insurance, inter-operationality with
other national and foreign certification authorities,
personnel selection and reliable management. The above
matters are required to be regulated by the chief of the
certifying authorities. Keeping the above aspects in mind,
we propose the provisions regarding the certifying
authorities as follows:-
Chapter V
CONTROLLER & CERTIFYING
AUTHORITIES
“18.
Certifying Authorities Controller and other officers.-
(1) The Government may, by notification in the Official
Gazette, appoint a Controller of Certifying Authorities for
the purposes of this Act.
(2) The Government may, by notification in the Official
Gazette, also appoint such number of Deputy Controllers and
Assistant Controllers as it deems fit.
(3) The Controller shall discharge such functions as are
vested in him under this Act under the general
superintendence and control of the Government.
(4) The Deputy Controllers and the Assistant Controllers
shall perform such functions as are assigned to them by the
Controller under the general superintendence and control of
the Controller.
(5) The qualifications, experience and terms and conditions
of service of the Controller, Deputy Controllers and
Assistant Controllers shall be such as may be prescribed by
the Government.
(6) The Head Office and Branch Offices of the office of the
Controller shall be at such places as the Government may
specify and may be established at such places as the
Government may think fit.
(7) There shall be a seal of the office of the Controller as
the Government may specify.
19.
Functions of the Controller.- The Controller may perform
all or any of the following functions, namely:-
(a)
exercising
supervision over the activities of the Certifying
Authorities;
(b)
certifying
public keys of the Certifying Authorities;
(c)
laying down the
standards to be maintained by the Certifying Authorities;
(d)
specifying the
qualifications and experience which employees of the
Certifying Authorities should possess;
(e)
specifying the
conditions subject to which the Certifying Authorities shall
conduct their business;
(f)
specifying the
contents of written, printed or visual materials and
advertisements that may be distributed or used in respect of
a Digital Signature Certifying and the public key;
(g)
specifying the
form and content of a Digital Signature Certificate and the
key;
(h)
specifying the
form and manner in which accounts shall be maintained by the
Certifying Authorities;
(i)
specifying the
terms and conditions subject to which auditors may be
appointed and the remuneration to be paid to them;
(j)
facilitating the
establishment of any electronic system by a Certifying
Authority either solely or jointly with other Certifying
Authorities and regulation of such system;
(k)
specifying the
manner in which the Certifying Authorities shall conduct
their dealings with the subscribers;
(l)
resolving any
conflict of interests between the Certifying Authorities and
the subscribers;
(m) laying down the duties of
the Certifying Authorities;
(n)
maintaining a
database containing the disclosure record of every
Certifying Authority containing such particulars as may be
specified by regulations, which shall be accessible to the
members of the public.
20.
Recognition of foreign Certifying Authorities.- (1)
Subject to such conditions and restrictions as may be
specified, by regulations, the Controller may, with the
previous approval of the Government, and by notification in
the Official Gazette, recognise any foreign Certifying
Authority as a Certifying Authority for the purposes of this
Act.
(2) Where any Certifying Authority is recognised under
sub-section (1) of this section, the Digital Signature
Certificate issued by such Certifying Authority shall be
valid for the purposes of this Act.
(3) The Controller may, if he is satisfied that any
Certifying Authority has contravened any of the conditions
and restrictions subject to which it was granted recognition
under sub-section (1) of this section, he may, for reasons
to be recorded in writing, by notification in the Official
Gazette, revoke such recognition.
21.
Controller to act as repository.- (1) The Controller
shall be the repository of all Digital Signature
Certificates issued under this Act.
(2) The Controller shall ensure that the secrecy and
security of the digital signatures are assured and in order
to do so shall –
(a)
make use of
hardware, software and procedures that are secure from
intrusion and misuse;
(b)
observe such
other standards as may be prescribed by the Government.
(3) The Controller shall
maintain a computerised database of all public keys in such
a manner that such database and the public keys are
available to any member of the public.
22.
Licence to issue Digital Signature Certificates.- (1)
Subject to the provisions of sub-section (2) of this
section, any person may make an application to the
Controller for a licence to issue Digital Signature
Certificates.
(2) No licence shall be issued under sub-section (1) of this
section unless the applicant fulfills such requirements with
respect to qualification, expertise, manpower, financial
resources and other infrastructure facilities which are
necessary to issue Digital Signature Certificates as may be
prescribed by the Government.
(3) A licence granted under sub-section (1) of this section
–
(a)
shall be valid
for such period as may be prescribed by the Government;
(b)
shall be subject
to such terms and conditions as may be specified by the
Controller; and
(c)
shall not be
transferable or heritable.
23.
Application for licence.- (1) Every application for
issue of a licence shall be in such form as may be
prescribed by the Government.
(2) Every application for issue of a licence shall be
accompanied by –
(a)
a certification
practice statement;
(b)
a statement
including the procedures with respect to identification of
the applicant;
(c)
payment of such
fees, not exceeding taka twenty-five thousand, as may be
prescribed by the Government; and
(d)
such other
documents as may be prescribed by the Government.
24.
Renewal of licence.- (1) An application for renewal of a
licence shall be in such form as may be prescribed by the
Government.
(2) Every application for renewal of a licence shall be
accompanied by such fees, not exceeding taka twenty five
thousand, as may be prescribed by the Government.
(3) Every application for renewal of a licence shall be made
not less than forty five days before the date of expiry of
the period of validity of the licence.
25.
Procedure for grant or rejection of licence.- The
Controller may, on receipt of an application under
sub-section (1) of section 22 of this Act, after considering
the documents accompanying the application and such other
factors as he deems fit, grant the licence or reject the
application:
Provided that no application shall be rejected under this
section unless the applicant has been given a reasonable
opportunity of presenting his case.
26.
Revocation and suspension of licence.- (1) The
Controller may, if he is satisfied after making such
inquiry, as he may think fit, that a Certifying Authority
has –
(a)
made a statement
in, or in relation to, the application for the issue or
renewal of the licence, which is incorrect or false in
material particulars;
(b)
failed to comply
with the terms and conditions subject to which the licence
was granted;
(c)
failed to
maintain the standards specified under clause (b) of
sub-section (2) of section 21 of this Act;
(d)
contravened any
provisions of this Act, rules, regulations or orders made
thereunder;
revoke the
licence:
Provided that no licence shall be revoked unless the
Certifying Authority has been given a reasonable opportunity
of showing cause against the proposed revocation.
(2) The Controller may, if he has reasonable cause to
believe that there is any ground for revoking a licence
under sub-section (1) of this section, by order, suspend
such licence pending the completion of any enquiry ordered
by him:
Provided that no licence shall be suspended for a period
exceeding ten days unless the Certifying Authority has been
given a reasonable opportunity of showing cause against the
proposed suspension.
(3) A Certifying Authority whose licence has been suspended
shall not issue any Digital Signature Certificate during the
period of such suspension.
27.
Notice of revocation or suspension of licence.- (1)
Where the licence of a Certifying Authority is revoked or
suspended, the Controller shall publish notice of such
revocation or suspension, as the case may be, in the
database maintained by him.
(2) Where one or more repositories are specified, the
Controller shall publish notices of such revocation or
suspension, as the case may be, in all such repositories:
Provided that the database containing the notice of such
revocation or suspension, as the case may be, shall be made
available through a website which shall be accessible round
the clock:
Provided further that the Controller may, if he considers
necessary, publicise the contents of database in such
electronic or other media as he may consider appropriate.
28.
Power to delegate.- The Controller may, in writing,
authorise the Deputy Controller, Assistant Controller or any
other officer to exercise any of the powers of the
Controller under this Chapter.
29.
Power to investigate contraventions.- (1) The Controller
or any officer authorised by him in this behalf shall take
up for investigation any contravention of the provisions of
this Act, rules or regulations made thereunder.
(2) The Controller or any officer authorised by him in this
behalf shall, for the purposes of sub-section (1) of this
section, have the same powers as are vested in a Civil Court
under the Code of Civil Procedure, 1908, (Act V of 1908),
when trying a suit in respect of the following matters,
namely:-
(a)
discovery and
inspection;
(b)
enforcing the
attendance of any person and examining him on oath or
affirmation;
(c)
compelling the
production of any documents; and
(d)
issuing
commissions for the examination of witness.
30.
Access to computers and data.- (1) Without prejudice to
the provisions of section 71 of this Act, the Controller or
any person authorised by him shall, if he has reasonable
cause to suspect that any contravention of the provisions of
this Act or rules and regulations made thereunder has been
committed, have access to any computer system, any
apparatus, data or any other material connected with such
system, for the purpose of searching or causing a search to
be made for obtaining any information or data contained in
or available to such computer system.
(2) For the purpose of sub-section (1) of this section, the
Controller or any person authorised by him may, by order,
direct any person in charge of, or otherwise concerned with
the operation of, the computer system, data apparatus or
material, to provide him with such reasonable technical and
other assistance as he may consider necessary.
31.
Certifying Authority to follow certain procedures.-
Every Certifying Authority shall, -
(a)
make use of
hardware, software, and procedures that are secure from
intrusion and misuse;
(b)
provide a
reasonable level of reliability in its services which are
reasonably suited to the performance of intended functions;
(c)
adhere to
security procedures to ensure that the secrecy and privacy
of the digital signatures are assured; and
(d)
observe such
other standards as may be specified by regulations.
32.
Certifying Authority to ensure compliance of the Act, rules,
regulations, etc.- Every Certifying Authority shall
ensure that every person employed or otherwise engaged by it
complies, in the course of his employment or engagement,
with the provisions of this Act, rules, regulations or
orders made thereunder.
33.
Display of licence.- Every Certifying Authority shall
display its licence at a conspicuous place of the premises
in which it carriers on its business.
34.
Surrender of licence.- Every Certifying Authority whose
licence is revoked or suspended shall immediately after such
revocation or suspension, surrender the licence to the
Controller.
35.
Disclosure.- (1) Every Certifying Authority shall
disclose in the manner specified by regulations –
(a)
its Digital
Signature Certificate which contains the public key
corresponding to the private key used by that Certifying
Authority to digitally sign another Digital Signature
Certificate;
(b)
any
certification practice statement relevant thereto;
(c)
notice of the
revocation or suspension of its Certifying Authority
certificate, if any; and
(d)
any other fact
that materially and adversely affects either the reliability
of a Digital Signature Certificate, which that Certifying
Authority has issued, or the Certifying Authority’s ability
to perform its services.
(2) Where in the opinion of
the Certifying Authority any event has occurred or any
situation has arisen which may materially and adversely
affect the integrity of its computer system or the
conditions subject to which a Digital Signature Certificate
was granted, then, the Certifying Authority shall –
(a)
use reasonable
efforts to notify any person who is likely to be affected by
the occurrence; or
(b)
act in
accordance with the procedure specified in its certification
practice statement to deal with such event or situation.
36.
Issue of certificate.- (1) The Certifying Authority may
issue a certificate to a prospective subscriber only after
the Certifying Authority –
(a)
has received an
application in the prescribed form requesting for issuance
of a certificate from the prospective subscriber; and
(b)
has –
(i) if it has a certification
practice statement, complied with all of the practices and
procedures set forth in such certification practice
statement including procedures regarding identification of
the prospective subscriber; or
(ii) in
the absence of a certification practice statement, the
Certifying Authority shall confirm by itself or through an
authorised agent that –
(a)
the prospective
subscriber is the person to be listed in the certificate to
be issued;
(b)
if the
prospective subscriber is acting through one or more agents,
the subscriber authroised the agent to have custody of the
subscriber’s private key and to request issuance of a
certificate listing the corresponding public key;
(c)
the information
in the certificate to be issued is accurate;
(d)
the prospective
subscriber rightfully holds the private key corresponding to
the public key to be listed in the certificate;
(e)
the prospective
subscriber holds a private key capable of creating a digital
signature; and
(f)
the public key
to be listed in the certificate can be used to verify a
digital signature affixed by the private key held by the
prospective subscriber.
(2) The prospective subscriber
shall pay such fees as may be prescribed for issuance of a
certificate.
37.
Representations upon issuance of certificate.- (1) By
issuing a certificate, the Certifying Authority represents
to any person who reasonably relies on the certificate or a
digital signature verifiable by the public key listed in the
certificate that the Certifying Authority has issued the
certificate in accordance with any applicable certification
practice statement incorporated by reference in the
certificate, or of which the relying person has notice.
(2) In the absence of such certification practice statement,
the Certifying Authority represents that it has confirmed
that –
(a)
the Certifying
Authority has complied with all applicable requirements of
this Act and the rules and regulations made thereunder in
issuing the certificate, and if the Certifying Authority has
published the certificate or otherwise made it available to
such relying person, that the subscriber listed in the
certificate has accepted it;
(b)
the subscriber
identified in the certificate holds the private key
corresponding to the public key listed in the certificate;
(c)
the subscriber’s
public key and private key constitute a functioning key
pair;
(d)
all information
in the certificate is accurate, unless the Certifying
Authority has stated in the certificate or incorporated by
reference in the certificate a statement that the accuracy
of specified information is not confirmed; and
(e)
the Certifying
Authority has no knowledge of any material fact which if it
had been included in the certificate would adversely affect
the reliability of the representations in clauses (a) to (d)
of this sub-section.
(3) Where there is an
applicable certification practice statement which has been
incorporated by reference in the certificate, or of which
the relying person has notice, sub-section (2) of this
section shall apply to the extent that the representations
are not inconsistent with the certification practice
statement.
38.
Revocation of Digital Signature Certificate.- (1) A
Certifying Authority shall revoke a Digital Signature
Certificate issued by it –
(a)
where the
subscriber or any person authorised by him makes a request
to that effect; or
(b)
upon the death
of the subscriber;
(c)
where the
subscriber is a firm or a company, if it has been dissolved
or wound up or has otherwise ceased to exist.
(2) Subject to the provisions
of sub-section (3) of this section and without prejudice to
the provisions of sub-section (1) of this section, a
Certifying Authority may revoke a Digital Signature
Certificate which has been issued by it at any time if it is
of opinion that –
(a)
a material fact
represented in the Digital Signature Certificate is false or
has been concealed;
(b)
a requirement
for issuance of the Digital Signature Certificate was not
satisfied;
(c)
the Certifying
Authority’s private key or security system was compromised
in a manner materially affecting the Digital Signature
Certificate’s reliability;
(d)
the subscriber
has been declared insolvent by a competent court or
authority.
(3) A Digital Signature
Certificate shall not be revoked unless the subscriber has
been given an opportunity of being heard in the matter.
(4) On revocation of a Digital
Signature Certificate under this section, the Certifying
Authority shall communicate the same to the subscriber.
39.
Suspension of Digital Signature Certificate.- (1)
Subject to the provisions of sub-section (2) of this
section, the Certifying Authority which has issued a Digital
Signature Certificate may suspend such Digital Signature
Certificate,-
(a)
on receipt of a
request to that effect from –
(i) the
subscriber listed in the Digital Signature Certificate; or
(ii) any
person duly authorised to act on behalf of that subscriber;
(b)
if it is of
opinion that the Digital Signature Certificate should be
suspended in public interest.
(2) A Digital Signature
Certificate shall not be suspended for a period exceeding
thirty days without giving the subscriber an opportunity of
being heard in the matter.
(3) On suspension of a Digital
Signature Certificate under this section, the Certifying
Authority shall communicate the same to the subscriber.
40.
Notice of revocation or suspension.- (1) Where a Digital
Signature Certificate is revoked under section 38 of this
Act or suspended under section 39 of this Act, the
Certifying Authority shall publish a notice of such
revocation or suspension, as the case may be, in the
repository specified in the Digital Signature Certificate
for publication of such notice.
(2) Where one or more repositories are specified, the
Certifying Authority shall publish notices of such
revocation or suspension, as the case may be, in all such
repositories.”
In the next provisions we propose to deal with the duties of
subscribers in electronic transactions. The provisions in
this respect in India and Singapore are substantially almost
identical – the difference lies only in the choice of words
and framing of the sections. We propose these provisions as
follows:-
Chapter VI
DUTIES OF SUBSCRIBERS
“41.
Generating key pair.- If the subscriber generates the
key pair whose public key is to be listed in a Digital
Signature Certificate issued by a Certifying Authority and
accepted by the subscriber, the subscriber shall generate
the key pair by applying the security procedure.
42.
Acceptance of Digital Signature Certificate.- (1) A
subscriber shall be deemed to have accepted a Digital
Signature Certificate if he
(a)
publishes or
authorises the publication of a Digital Signature
Certificate–
(i) to
one or more persons; or
(ii) in a
repository; or
(b)
otherwise
demonstrates his approval of the Digital Signature
Certificate in any manner.
(2) By accepting a Digital
Signature Certificate the subscriber certifies to all who
reasonably rely on the information contained in the Digital
Signature Certificate that –
(a)
the subscriber
holds the private key corresponding to the public key listed
in the Digital Signature Certificate and is entitled to hold
the same;
(b)
all
representations made by the subscriber to the Certifying
Authority and all materials relevant to the information
contained in the Digital Signature Certificate are true; and
(c)
all information
in the Digital Signature Certificate that is within the
knowledge of the subscriber is true.
43.
Obtaining Digital Signature Certificate.- All material
representations made by the subscriber to a Certifying
Authority for purposes of obtaining a certificate, including
all information known to the subscriber and represented in
the Digital Signature Certificate, shall be accurate and
complete to the best of the subscriber’s knowledge and
belief, regardless of whether such representations are
confirmed by the Certifying Authority.
44.
Control of private key.- (1) Every subscriber shall
exercise reasonable care to retain control of the private
key corresponding to the public key listed in his Digital
Signature Certificate and take all steps to prevent its
disclosure to a person not authorised to affix the digital
signature of the subscriber.
(2) If the private key corresponding to the public key
listed in the Digital Signature Certificate has been
compromised, then, the subscriber shall communicate the same
without any delay to the Certifying Authority who has issued
the Digital Signature Certificate in such manner as may be
specified by regulations.
Explanation.- For the purpose of removal of
doubts, it is hereby declared that the subscriber shall be
liable till he has informed the Certifying Authority that
the private key has been compromised.”
After the above provisions, contraventions and information
technology offences are required to be dealt with.
Certain computer-related unauthorized and harmful acts
primarily involve liability of civil nature and these acts
may be categorized as “contraventions” for which imposition
of penalty/ compensation/ damage etc. would be sufficient.
For dealing with “contraventions” some countries have made
provisions for establishment of special forums as well as
appellate forums as their adjudication may require expert
knowledge. Some other computer-related harmful acts of more
serious nature have been specified as penal offences made
punishable with imprisonment, fines, etc. and triable by
criminal courts.
The acts constituting “contraventions’ may be categorized as
follows:-
(a)
accessing or
securing access to the computer or computer network;
(b)
downloading any
data or information from the computer or computer network;
(c)
introducing or
causing to be introduced any computer contaminant or
computer virus into the computer or computer network;
(d)
damaging or
causing to be damaged the computer, computer network, data,
computer database or any other programmes residing in it;
(e)
disrupting or
causing the disruption of the computer or computer network;
(f)
denying or
causing the denial of access to any person authorised to
access the computer or computer network by any means;
(g)
providing
assistance to any person to facilitate access to the
computer or computer network in contravention of the
provisions of the proposed Act and rules or regulations made
thereunder; and
(h)
charging the
services availed of by a person to the account of another
person by tampering with or manipulating any computer or
computer network.
The above harmful acts are
popularly called “cyber vandalism”, “hacking”, “malicious
spreading of viruses”, “password fraud”, etc.
In addition, the following
“failures” may be included in this category:-
(i)
failure to
furnish documents, returns, reports, etc under the Act,
rules, regulations, etc.;
(j)
failure to file
return, information, etc. and
(k)
failure to
maintain books, accounts, returns, etc.
Any person contravening any of
the above clauses should be saddled with punishments which
may take the form of compensation, damage, penalty, etc., or
a combination of some or all of them according to the nature
and gravity of the “contravention”. So, we propose the
following provisions specifying the “contraventions”,
compensation/ penalties therefor and establishment of forums
for dealing with them:-
Chapter VII
PENALTIES AND ADJUDICATION
“45.
Penalty for damage to computer, computer system, etc.-
If any person, without permission of the owner or any other
person who is in charge of a computer, computer system or
computer network,-
(a)
accesses or
secures access to such computer, computer system or computer
network;
(b)
downloads,
copies or extracts any data, computer database or
information from such computer, computer system or computer
network including information or data held or stored in any
removable storage medium;
(c)
introduces or
causes to be introduced any computer contaminant or computer
virus into any computer, computer system or computer
network;
(d)
damages or
causes to be damaged any computer, computer system or
computer network, data, computer database or any other
programmes residing in such computer, computer system or
computer network;
(e)
disrupts or
causes disruption of any computer, computer system or
computer network;
(f)
denies or causes
the denial of access to any person authorised to access any
computer, computer system or computer network by any means;
(g)
provides any
assistance to any person to facilitate access to a computer,
computer system or computer network in contravention of the
provisions of this Act, or rules and regulations made
thereunder;
(h)
charges the
services availed of by a person to the account of another
person by tampering with or manipulating any computer,
computer system or computer network,
he shall be liable to pay to
the person affected compensation not exceeding Taka one
crore.
Explanation.- For the purposes of this
section,-
(i)
“computer
contaminant” means any set of computer instructions that are
designed-
(a)
to modify,
destroy, record, transmit data or programme residing within
a computer, computer system or computer network; or
(b)
by any means to
usurp the normal operation of the computer, computer system
or computer network;
(ii) “computer database” means
a representation of information, knowledge, facts, concepts
or instructions in text, image, audio, video that are being
prepared or have been prepared in a formalised manner or
have been produced by a computer, computer system or
computer network and are intended for use in a computer,
computer system or computer network;
(iii) “computer virus” means
any computer instruction, information, data or programme
that destroys, damages, degrades or adversely affects the
performance of a computer resource or attaches itself to
another computer resource and operates when a programme,
data or instruction is executed or some other event takes
place in that computer resource;
(iv) “damage” means to
destroy, alter, delete, add, modify or re-arrange any
computer resource by any means.
46.
Penalty for failure to furnish document, return or report.-
Whoever fails to furnish any document, return or report
to the Controller or the Certifying Authority which he is
required under this Act, or rules or regulations made
thereunder to furnish shall be liable to pay a penalty which
may extend to Taka two lakhs for each such failure.
47.
Penalty for failure to file return, information, books,
etc.- Whoever fails to file any return or furnish any
information, books or other documents within the time
specified therefor in this Act, or rules or regulations made
thereunder shall be liable to pay a penalty which may extend
to Taka ten thousand for every day during which such failure
continues.
48.
Penalty for failure to maintain books of accounts or
records.- Whoever fails to maintain books of account or
records which he is required under this Act, or rules or
regulations made thereunder to maintain shall be liable to
pay a penalty which may extend to Taka ten thousand for
every day during which the failure continues.
49.
Residuary penalty.- Whoever contravenes any provisins of
this Act, or any rules or regulations made thereunder, for
which no penalty has been separately provided, shall be
liable to pay a compensation which may extend to Taka twenty
five thousand to the person affected by such contravention
or a penalty which may extend to Taka twenty five thousand.
50.
Adjudicating Officer.- (1) For the purpose of adjudging
whether any person has committed a contravention of any of
the provisions of this Act, or of any rules or regulations
made thereunder the Government shall, subject to the
provisions of sub-section (2) of this section, appoint any
person to be an Adjudicating Officer.
(2) No person shall be appointed as an Adjudicating Officer
unless he possesses such qualifications, experience in the
field of information technology, legal experience or
judicial experience as may be prescribed.
(3) The Government may appoint more than one Adjudicating
Officer and where more than one adjudicating officer are
appointed the Government shall specify by order the matters
and places with respect to which such officers shall
exercise jurisdiction.
51.
Powers of Adjudicating Officer.- (1) The Adjudicating
Officer may, if after giving to the person referred to in
sub-section (1) of section 50 of this Act a reasonable
opportunity of being heard and after holding such inquiry as
he may deem fit, finds that the person has committed the
contravention, impose upon him such penalty or such
compensation as he thinks fit, in accordance with the
provisions of this Act.
(2) While adjudging the quantum of compensation or penalty,
as the case may be, the Adjudicating Officer shall have due
regard to the following factors, namely:-
(a)
the amount of
gain or unfair advantage, wherever quantifiable, made as a
result of the default;
(b)
the amount of
loss caused to any person as a result of the default;
(c)
the repetitive
nature of the default;
(3) Every Adjudicating Officer
shall have, for the purposes of discharging his functions
under this Act, the same powers as are vested in a Civil
Court under the Code of Civil Procedure, 1908 (Act V of
1908), while trying a suit, in respect of the following
matters, namely:-
(a)
summoning and
enforcing the attendance of any person and examining him on
oath;
(b)
requiring the
discovery, inspection and production of documents or other
electronic records;
(c)
receiving
evidence on affidavits;
(d)
issuing
commissions for the examination of witnesses or documents;
(e)
reviewing its
decisions;
(f)
dismissing an
application for default or deciding it exparte;
(g)
any other matter
which may be prescribed.
(4) Subject to sub-section (3)
of this section, the Adjudicating Officer shall not be bound
by the procedure laid in the Code of Civil Procedure, 1908
(Act V of 1908), but shall be guided by the principles of
natural justice and, subject to the provisions of this Act,
or any rules or regulations made thereunder, shall have the
powers to regulate its own procedure.
(5) All proceedings before the
Adjudicating Officer shall be deemed to be judicial
proceedings within the meaning of sections 193 and 228, and
for the purposes of section 196 of the Penal Code, 1860 (Act
XL of 1860).
(6) Every Adjudicating Officer
shall be deemed to be a Civil Court for the purposes of
section 195 and Chapter XXXV of the Code of Criminal
Procedure, 1898 (Act V of 1898).”
The next provisions should
deal with establishment of an appellate authority to hear
appeals from the orders of the Controller of Certifying
Authorities and the Adjudicating Officers. In the Indian
Act, such provisions have been made.
There should also be provisions for appeal against the
orders of the appellate authorities. To our view, appeals
from the orders of the appellate authorities should lie to
the High Court Division. In India, such appeals lie to the
High Court.
We, accordingly, propose the
provisions regarding the appellate authorities as follows:-
Chapter VIII
CYBER REGULATIONS APPELLATE
TRIBUNAL
“52.
Establishment of Cyber Appellate Tribunal.- (1) The
Government shall, by notification in the Official Gazette,
establish one or more appellate tribunals to be known as the
Cyber Appellate Tribunal.
(2) The Government shall specify, in the notification
referred to in sub-section (1) of this section, the matters
and places in respect of which the Cyber Appellate Tribunal
may exercise jurisdiction.
53.
Composition, qualifications, term of office, conditions of
servcice, etc. of Cyber Appellate Tribunal.- (1) The
Cyber Appellate Tribunal shall consist of one person
(hereinafter referred to as the Presiding Officer) to be
appointed by the Government by notification in the Official
Gazette.
(2) A person shall not be qualified for appointment as the
Presiding Officer of a Cyber Appellate Tribunal unless he –
(a)
is, or has been,
or is qualified to be, a Judge of the Supreme Court; or
(b)
is, or has been,
an officer in the service of the Republic not below the rank
of a Secretary to the Government.
(3) The Presiding Officer of a
Cyber Appellate Tribunal shall hold office for a term of
five years from the date on which he enters upon his office
or until he attains the age seventy two years, whichever is
earlier.
(4) The salary and allowances
payable to, and the other terms and conditions of service
including pension, gratuity and other retirement benefits
of, the Presiding Officer of a Cyber Appellate Tribunal
shall be such as may be determined by the Government.
(5) The salary and allowances
and the other terms and conditions of service of the
Presiding Officer of a Cyber Appellate Tribunal shall not be
varied to his disadvantage during the tenure of his office.
54.
Filling up of vacancies.- If any vacancy, other than
temporary absence, occurs in the office of the Presiding
Officer of a Cyber Appellate Tribunal, then the Government
shall appoint another person in accordance with the
provisions of this Act to fill the vacancy and the
proceedings may be continued before the Cyber Appellate
Tribunal from the stage at which the vacancy is filled.
55.
Resignation and removal.- (1) The Presiding Officer of a
Cyber Appellate Tribunal may resign his office by notice in
writing under his hand addressed to the Government:
Provided that the said Presiding Officer shall, unless he is
permitted by the Government to relinquish his office sooner,
continue to hold office until the expiry of three months
from the date of receipt of such notice by the Government or
until a person appointed as his successor enters upon his
office or until the expiry of his term of office, whichever
is the earliest.
(2) The Presiding Officer of a Cyber Appellate Tribunal
shall not be removed from his office except by an order by
the Government on the ground of proved misconduct or
physical or mental infirmity after an enquiry by a Judge of
the Supreme Court nominated by the Chief Justice of
Bangladesh after affording the Presiding Officer a
reasonable opportunity of being heard in respect of the
charges levelled against him.
(3) The Government may make rules for regulating the
procedure for the enquiry under sub-section (2) of this
section.
56.
Orders constituting Cyber Appellate Tribunal to be final and
not to invalidate proceedings.- The order of the
Government appointing any person as the Presiding Officer of
a Cyber Appellate Tribunal shall be final and shall not be
called in question in any manner and no act or proceeding
before a Cyber Appellate Tribunal shall be called in
question in any manner on the ground merely of any defect in
the constitution of a Cyber Appellate Tribunal.
57.
Staff of Cyber Appellate Tribunal.- (1) The Government
shall provide a Cyber Appellate Tribunal with such officers
and employees as the Government may think fit.
(2) The officers and employees of a Cyber Appellate Tribunal
shall be under the general control and superintendence of
the Presiding Officer.
(3) The salaries, allowances and other terms and conditions
of service of the officers and employees of the Cyber
Appellate Tribunal shall be determined by the Government.
58.
Appeal to Cyber Appellate Tribunal.- (1) Any person
aggrieved by an order made by the Controller or an
Adjudicating Officer under this Act may prefer an appeal to
a Cyber Appellate Tribunal having jurisdiction in the
matter:
Provided that no appeal shall lie to the Cyber Appellate
Tribunal from an order made by an Adjudicating Officer with
the consent of the parties.
(2) Every appeal under sub-section (1) of this section shall
be filed within a period of 30 days from the date on which a
copy of the order appealed against is received by the person
aggrieved and it shall be in such form and accompanied by
such fee as may be prescribed:
Provided that section 5 of the Limitation Act, 1908 (Act IX
of 1908) shall apply to an appeal under this section.
(3) On receipt of an appeal under sub-section (1) of this
section, the Cyber Appellate Tribunal shall, after giving
the parties to the appeal reasonable opportunity of being
heard, pass such orders as it may deem fit and may, by such
order, confirm, modify or set aside the order appealed
against or send back the matter for rehearing to the
Controller or the Adjudicating Officer concerned, as the
case may be.
(4) The Cyber Appellate Tribunal shall send a copy of every
order made by it to the Controller or the Adjudicating
Officer concerned, as the case may be.
(5) The Cyber Appellate Tribunal shall furnish copy of every
order made by it to the parties to the appeal and to any
other person interested on application being made to it and
on payment of such fees as may be prescribed.
(6) Every appeal filed under sub-section (1) of this section
shall be disposed of by the Cyber Appellate Tribunal as
expeditiously as possible and every endeavour shall be made
for its disposal within a period of six months from the date
of its receipt.
59. Procedure and powers of Cyber Appellate Tribunal.-
(1) The Cyber Appellate Tribunal shall not be bound by
the procedure laid down in the Code of Civil Procedure, 1908
(Act V of 1908), but shall be guided by the principles of
natural justice and, subject to the provisions of this Act
and of any rules and regulations made thereunder, shall have
the powers to regulate its own procedure including
determination of the place or places at which it shall hold
its sittings.
(2) Notwithstanding sub-section (1) of this section, the
Cyber Appellate Tribunal shall have the same powers as are
vested in a Civil Court under the Code of Civil Procedure,
1908 (Act V of 1908), while trying a suit, in the following
matters, namely:-
(a)
summoning and
enforcing the attendance of any person and examining him on
oath;
(b)
requiring the
discovery, inspection and production of documents or other
electronic records;
(c)
receiving
evidence on affidavits;
(d)
issuing
commission for the examination of witnesses or documents;
(e)
reviewing its
decision;
(f)
dismissing an
application for default or deciding it exparte;
(g)
any other matter
which may be prescribed.
(3) All proceedings before a
Cyber Appellate Tribunal shall be deemed to be judicial
proceedings within the meaning of sections 193 and 228, and
for the purposes of sections 196 of the Penal Code, 1860
(Act XLV of 1860) and a Cyber Appellate Tribunal shall be
deemed to be a Civil Court for the purposes of section 195
and Chapter XXXV of the Code of Criminal Procedure, 1898
(Act V of 1898).
60.
Right of legal representation.- The parties to an appeal
may either appear in person or authorise one or more legal
practitioners or any of their officers to present their
cases before the Cyber Appellate Tribunal.
61.
Application of the Limitation Act 1908 (Act IX of 1908).-
Subject to the provisions of this Act, the provisions of the
Limitation Act, 1908 (Act IX of 1908) shall, as far as may
be applicable, apply to an appeal filed under sub-section
(1) of section 58 of this Act.
62.
Court’s jurisdiction barred.- Save as is provided in
this Act, no court shall entertain any suit or proceeding in
respect of any matter which an Adjudicating Officer
appointed under this Act or the Cyber Appellate Tribunal
constituted under this Act is empowered by or under this Act
to determine and no injunction shall be granted by any court
or other authority in respect of any action taken or to be
taken in exercise of any power conferred by or under this
Act.
63.
Appeal to High Court Division.- Any person aggrieved by
any decision or order of the Cyber Appellate Tribunal may
file an appeal against such decision or order to the High
Court Division within sixty days from the date of receipt of
the copy of the decision or order of the Cyber Appellate
Tribunal on any question of fact or law:
Provided that section 5 of the Limitation Act, 1908 (Act IX
of 1908) shall apply to an appeal under this section.
64.
Compounding of contraventions.- (1) Any contravention
under this Act may, either before or after the institution
of adjudication proceedings, be compounded by the Controller
or such other officer as may be authorised by him in this
behalf or by the Adjudicating Officer, as the case may be,
subject to such conditions as the Controller or such other
officer or the Adjudicating Officer may specify:
Provided that if the condition specified is payment of any
sum of money by one party to the other, such sum shall not,
in any case, exceed the maximum amount of penalty which may
be imposed under this Act for the contravention so
compounded.
(2) Nothing in sub-section (1) of this section shall apply
to a person who commits the same or similar contravention
within a period of three years from the date on which the
first contravention, committed by him, was compounded.
Explanation.- For the purposes of this
sub-section, any second or subsequent contravention
committed after the expiry of a period of three years from
the date on which the contravention was previously
compounded shall be deemed to be a first contravention.
(3) Where any contravention has been compounded under
sub-section (1) of this section, no proceeding or further
proceeding, as the case may be, shall be taken against the
person guilty of such contravention in respect of the
contravention so compounded.
65.
Recovery of penalty and compensation.- Any penalty or
compensation payable under this Act, if not paid, shall be
recoverable as arrear of land revenue and the licence or the
Digital Signature Certificate, as the case may be, of the
defaulter shall be suspended till the penalty or the
compensation, as the case may be, is paid.”
We next propose to deal with information technology offences
and punishments for such offences.
While dealing with offences in
the working paper we did not consider a very important
aspect. Now-a-days computers are being used by criminals for
committing various types of offences including offences of
very serious nature. Many such offences are included in our
penal laws such as, the Penal Code, 1860, the Special Powers
Act, 1974, etc. etc. In a recent conference organised by the
United States Department of Justice on Legal Framework for
Combating Cybercrime held in Moscow on 17-18 August, 2002,
use of computers for committing various types of criminal
offences and as to how to combat it was highlighted and the
discussion mainly centered round commission of terrorist
acts by various terrorist groups around the world. Speakers
from various countries emphasized the need for making use of
computers for committing terrorist acts an offence. Some
delegates pointed out that there is no unanimity among
nations on the definition of terrorism and in the penal laws
of many countries the term, “terrorism”, does not appear as
an offence. It is, however, necessary to prevent use of
computers for any penal offence whatsoever. In the working
paper no proposal has been made for including use of
computers for committing an offence as a punishable offence.
So, a new section may be added making the use of computers
for committing an offence as a punishable offence under the
proposed Act and in this connection, the term “act” and
“offence”, will require definition. So, the offences
relating to information technology may be classified as
follows:- (a) Source code attacks; (b) Hacking; (c)
Obscenity; (d) Failure to comply with Controller’s
directions; (e) Subscriber’s failure to comply with
Controller’s requirement for decryption; (f) Accessing
designated protected systems; (g) Misrepresentation to the
Controller; (h) Breach of confidentiality or privacy; (i)
Publishing False Digital Signature Certificate; (j) Making
available Digital Signature for fraudulent purposes and (k)
Use of computers for committing an offence. Specific
punishments should be provided for these offences in the
proposed Act. Moreover, in addition to punishments,
provisions for confiscation of computers, computer system,
floppies, compact disks, tape drives or any other
accessories related thereto in respect of which
contravention or offence occurs should be made but there may
be exceptions for those who are found to be innocent.
Penalty, compensation and confiscation should also be in
addition to punishments for offences. We, accordingly,
propose the next provisions as follows:-
Chapter IX
OFFENCES
“66.
Punishment for tampering with computer source documents.-
Whoever intentionally or knowingly conceals, destroys or
alters or intentionally or knowingly causes any other person
to conceal, destroy or alter any computer source code used
for a computer, computer programme, computer system or
computer network, when the computer source code is required
to be kept or maintained by any law for the time being in
force, shall be punishable with imprisonment of either
description for a term which may extend to three years, or
with fine which may extend to Taka two lakhs, or with both.
Explanation.- For the purposes of this
section, “computer source code” means the listing of
programmes, computer commands, design and layout and
programme analysis of computer resource in any form.
67.
Hacking with computer system.- Whoever, with intent to
cause or knowing that he is likely to cause wrongful loss or
damage to the public or any person, does any act and thereby
destroys, deletes or alters any information residing in a
computer resource or diminishes its value or utility or
affects it injuriously by any means, commits the offence of
“hacking”.
68.
Punishment for hacking.- Whoever commits hacking shall
be punished with imprisonment of either description for a
term which may extend to three years, or with fine which may
extend to Taka two lakhs, or with both.
69.
Punishment for publishing obscene information in electronic
form.- Whoever publishes or transmits or causes to be
published or transmitted in electronic form any material
which is obscene or if its effect is such as to tend to
deprave and corrupt persons who are likely, having regard to
all relevant circumstances, to read, see or hear the matter
contained or embodied in it, shall be punished on first
conviction with imprisonment of either description for a
term which may extend to five years and with fine which may
extend to Taka one lakh and in the event of a second or
subsequent conviction with imprisonment of either
description for a term which may extend to ten years and
with fine which may extend to Taka two lakhs for each such
subsequent offence.
70.
Punishment for failure to surrender licence under section
34.- Where any Certifying Authority fails to surrender a
licence under section 34 of this Act, the person in whose
favour the licence is issued shall be guilty of an offence
and shall be punished with imprisonment of either
description for a term which may extend to six months or
with fine which may extend to Taka ten thousand or with
both.
71.
Power of Controller to give directions.- The Controller
may, by order, direct a Certifying Authority or any employee
of such a Certifying Authority to take such measures or
cease carrying on such activities as specified in the order
if those are necessary to ensure compliance with the
provisions of this Act, or rules and regulations made
thereunder.
72.
Punishment for failure to comply with order made under
section 71.- Any person who fails to comply with any
order made under section 71 of this Act shall be guilty of
an offence and shall be liable on conviction to suffer
imprisonment of either description for a term which may
extend to one year or to pay a fine which may extend to Taka
one lakh or to both.
73.
Directions of Controller to a subscriber to extend
facilities to decrypt information.- (1) If the
Controller is satisfied that it is necessary or expedient so
to do in the interest of the sovereignty, integrity, or
security of Bangladesh, friendly relations of Bangladesh
with other States, public order or for preventing incitement
to the commission of any cognizable offence, for reasons to
be recorded in writing, by order, direct any agency of the
Government to intercept any information transmitted through
any computer resource.
(2) The subscriber or any person in charge of a computer
resource shall, when called upon by any agency to which
direction has been issued under sub-section (1) of this
section, extend all facilities and technical assistance to
decrypt the information.
74.
Punishment for failure to comply with sub-section (2) of
section 73.- The subscriber or any person who fails to
assist the agency referred to in sub-section (2) of section
73 of this Act shall be punished with imprisonment of either
description for a term which may extend to seven years or
with fine which may extend to Taka one lakh or with both.
75.
Protected system.- (1) The Government may, by
notification in the Official Gazette, declare any computer,
computer system or computer network to be a protected
system.
(2) The Government may, by order in writing, authorise the
persons who are authorised to secure access to protected
systems notified under sub-section (1) of this section.
76.
Punishment for unauthorised access to protected systems.-
Any person who secures access or attempts to secure access
to a protected system in contravention of the provisions of
section 75 of this Act shall be punished with imprisonment
of either description for a term which may extend to ten
years and shall also be liable to fine which may extend to
Taka two lakhs.
77.
Punishment for misrepresentation.- Whoever makes any
misrepresentation to, or suppresses any material fact from,
the Controller or the Certifying Authority for obtaining any
licence or Digital Signature Certificate, as the case may
be, shall be punished with imprisonment of either
description for a term which may extend two years, or with
fine which may extend to Taka one lakh, or with both.
78. Bar
on disclosure of confidentiality and privacy.- Save as
otherwise provided by this Act or any other law for the time
being in force, no person who, in pursuance of any of the
powers conferred under this Act, or rules and regulations
made thereunder, has secured access to any electronic
record, book, register, correspondence, information,
document or other material shall, without the consent of the
person concerned, disclose such electronic record, book,
register, correspondence, information, document or other
material to any other person.
79.
Punishment for breach of confidentiality and privacy.-
Whoever contravenes the provisions of section 78 of this Act
shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine which
may extend to Taka one lakh, or with both.
80. Bar
on publishing false Digital Signature Certificate.- No
person shall publish a Digital Signature Certificate or
otherwise make it available to any other person knowing that
–
(a) the Certifying Authority
listed in the certificate has not issued it; or
(b) the subscriber listed in
the certificate has not accepted it; or
(c)
the certificate
has been revoked or suspended,
unless such
publication is for the purpose of verifying a digital
signature created prior to such suspension or revocation.
81.
Punishment for publishing false Digital Signature
Certificate.- Whoever contravenes the provisions of
section 80 of this Act shall be punished with imprisonment
of either description for a term which may extend to two
years, or with fine which may extend to Taka one lakh, or
with both.
82.
Punishment for publication for fraudulent purpose.-
Whoever knowingly creates, publishes or otherwise makes
available a Digital Signature Certificate for any fraudulent
or unlawful purpose shall be punished with imprisonment of
either description for a term which may extend to two years,
or with fine, which may extend to Taka one lakh, or with
both.
83.
Punishment for using computer for committing an offence.-
Whoever uses or intentionally causes to be used a computer,
computer network, computer resource or computer system for,
or for facilitating, the commission of an offence shall be
punished, if the offence has been committed, with the
punishment provided for the offence and if the offence has
not been committed, with imprisonment of either description
for a term which may extend to half of the period of
imprisonment prescribed for the offence or with fine or with
both.
84. Act
to apply for offence or contravention committed outside
Bangladesh.- (1) Subject to the provisions of
sub-section (2) of this section, the provisions of this Act
shall apply also to any offence or contravention committed
outside Bangladesh by any person irrespective of his
nationality.
(2) For the purposes of sub-section (1) of this section,
this Act shall apply to an offence or contravention
committed outside Bangladesh by any person if the act or
conduct constituting the offence or contravention involves a
computer, computer system or computer network located in
Bangladesh.
85.
Confiscation.- Any computer, computer system, floppies,
compact disks, tape drives or any other accessories related
thereto, in respect of which any provision of this Act,
rules, orders or regulations made thereunder has been or is
being contravened, or in respect of which any offence has
been committed, shall be liable to confiscation by an order
of the court trying an offence or contravention:
Provided that where it is established to the satisfaction of
the court that the person in whose possession, power or
control any such computer, computer system, floppies,
compact disks, tape drives or any other accessories relating
thereto is found is not responsible for the contravention of
the provisions of this Act, rules, orders or regulations
made thereunder, the court may, instead of making an order
for confiscation of such computer, computer system,
floppies, compact disks, tape drives or any other
accessories related thereto, make such other order
authorised by this Act against the person contravening the
provisions of this Act, rules, orders or regulations made
thereunder as it may think fit.
Explanation.- For the purposes of this section, court
includes Adjudicating Officer and Cyber Appellate Tribunal.
86.
Penalties or confiscation no bar against other punishments.-
No penalty imposed or confiscation made under this Act shall
prevent the imposition of any other punishment to which the
person affected thereby may be liable under any other law
for the time being in force.
87.
Power of investigation of offences under this Act.-
Notwithstanding anything contained in the Code of Criminal
Procedure, 1898 (Act V of 1898), a police officer not below
the rank of an Inspector of Police shall investigate any
offence under this Act.”
In the Indian Act, a provision has been made to exempt an
intermediary providing service from the liability of penalty
or punishment for contravention of any provision of the Act
if he proves that the offence or contravention was committed
without his knowledge or that he had exercised due diligence
to prevent the commission of such offence or contravention.
We may as well include such a provision in the proposed Act.
The next provision may, accordingly, be as follows:-
“88.
Network service providers not to be liable in certain
cases.- For the removal of doubts, it is hereby declared
that no person providing any service as a network service
provider shall be liable under this Act, or rules and
regulations made thereunder, for any third party information
or data made available by him if he proves that the offence
or contravention was committed without his knowledge or that
he had exercised due diligence to prevent the commission of
such offence or contravention.
Explanation.- For the purposes of this section,-
(a)
“network service
provider” means an intermediary;
(b)
“third party
information” means any information dealt with by a network
service provider in his capacity as an intermediary.”
Separate specific provision is
required to be made for imposition of liability when
offences or contraventions are committed by a company. This
provision may run as follows:-
“89.
Offences committed by companies.- (1) Where a person
committing an offence under this Act, or rule and regulation
made thereunder or a contravention of any provision of this
Act, rule, regulation, direction or order made thereunder is
a company, every person who, at the time the offence or the
contravention, as the case may be, was committed, was in
charge of, and was responsible to, the company for the
conduct of business of the company as well as the company,
shall be guilty of the offence or the contravention, as the
case may be, and shall be liable to be proceeded against and
punished accordingly:
Provided that nothing contained in this sub-section shall
render any such person to punishment if he proves that the
offence or contravention was committed without his knowledge
or that he exercised due diligence in order to prevent
commission of such offence or contravention.
(2) Notwithstanding anything contained in sub-section (1) of
this section, where an offence under this Act, or rule and
regulation made thereunder or contravention of any provision
of this Act, rule, regulation, direction or order made
thereunder has been committed by a company and it is proved
that the offence or the contravention, as the case may be,
has taken place with the consent or connivance of, or is
attributable to any neglect on the part of any director,
manager, secretary or other officer of the company, such
director, manager, secretary or other officer shall also be
deemed to be guilty of the offence or the contravention and
shall be liable to be proceeded against and punished
accordingly.
Explanation.-
For the purposes of this section.-
(a)
“company” means
any body corporate and includes a firm or other association
of individuals; and
(b)
“director”, in
relation to a firm, includes a partner in the firm.”
90.
Power of police officer and other officers to enter, search,
etc.- (1) Notwithstanding anything contained in the Code
of Criminal Procedure, 1898 (Act V of 1898), any police
officer, not below the rank of an Inspector of Police, or
any other officer of the Government authorised by the
Government in this behalf may enter any public place and
search and arrest without warrant any person found therein
who is reasonably suspected of having committed or of
committing or of being about to commit any offence under
this Act.
Explanation.- For the purposes of this
sub-section, the expression, “public place”, includes any
public conveyance, any hotel, any shop or any other place
intended for use by, or accessible to, the public.
(2) Where any person is arrested under sub-section (1) of
this section by an officer other than a police officer, such
officer shall, without unnecessary delay, take or send the
person arrested before a magistrate having jurisdiction in
the case or before the officer in charge of a police
station.
(3) The provisions of the Code of Criminal Procedure, 1898
(Act V of 1898) shall, subject to the provisions of this
section, apply, so far as may be, in relation to any entry,
search or arrest made under this section.”
In the concluding part of the
Act, certain miscellaneous provisions are required to be
made. These are: (1) overriding effect of the Act; (2)
declaring certain functionaries under the Act as public
servants; (3) immunity; (4) removal of difficulties; and (5)
power to make rules. We propose these provisions as
follows:-
Chapter X
MISCELLANEOUS
91. Act
to override other laws.- The provisions of this Act
shall have effect notwithstanding anything inconsistent
therewith in any other law for the time being in force.
92.
Presiding Officer, Controller, etc. to be public servants.-
The Presiding Officer, the Controller, the Deputy
Controllers, the Assistant Controllers, the Adjudicating
Officers and the officers and the employees of the Cyber
Appellate Tribunal, the Controller, the Deputy Controllers,
the Assistant Controllers and the Adjudicating Officers
shall be deemed to be public servants within the meaning of
section 21 of the Penal Code, 1860 (Act XLV of 1860).
93.
Protection of action taken in good faith.- No suit,
prosecution or other legal proceedings shall lie against the
Government, the Controller or any person acting on his
behalf, the Presiding Officer of the Cyber Appellate
Tribunal, the Adjudicating Officers, and the staff of the
Presiding Officer of the Cyber Appellate Tribunal, the
Controller and the Adjudicating Officers for anything which
is in good faith done or intended to be done in pursuance of
this Act or any rule, regulation, order or direction made
thereunder.
94.
Removal of difficulties.- (1) If any difficulty arises
in giving effect to the provisions of this Act, the
Government may, by order published in the Official Gazette,
make such provisions not inconsistent with the provisions of
this Act as appear to it to be necessary or expedient for
removing the difficulty:
Provided that no order shall be made under this sub-section
after the expiry of two years from the date of commencement
of this Act.
(2) Every order made under sub-section (1) of this section
shall be laid, as soon as may be after it is made, before
the Parliament.
95.
Power of Government to make rules.- (1) The Government
may, by notification in the Official Gazette and in the
Electronic Gazette, make rules for carrying out the
provisions of this Act.
(2) In particular, and without prejudice to the generality
of the foregoing power, such rules may provide for all or
any of the following matters, namely:-
(a)
the manner in
which any information or matter may be authenticated or any
document may be signed by means of digital signature under
section 6 of this Act;
(b)
the electronic
form in which filing, issue, grant or payment shall be
effected under sub-section (1) of section 7 of this Act;
(c)
the manner and
format in which electronic records shall be filed, or issued
and the method of payment under sub-section (2) of section 7
of this Act;
(d)
the matters
relating to the type of digital signature, manner and format
in which it may be affixed under section 11 of this Act;
(e)
the security
procedure for the purpose of creating secure electronic
record and secure digital signature under section 17 of this
Act;
(f)
the
qualifications, experience and terms and conditions of
service of the Controller, Deputy Controllers and Assistant
Controllers under section 18 of this Act;
(g)
other standards
to be observed by the Controller under clause (b) of
sub-section (2) of section 21 of this Act;
(h)
the requirements
which an applicant must fulfil under sub-section (2) of
section 22 of this Act;
(i)
the period of
validity of licence granted under clause (a) of sub-section
(3) of section 22 of this Act;
(j)
the form in
which an application for licence may be made under
sub-section (1) of section 23 of this Act;
(k)
the amount of
fees payable under clause (c) of sub-section (2) of section
23 of this Act;
(l)
such other
documents which shall accompany an application for licence
under clause (d) of sub-section (2) of section 23 of this
Act;
(m)
the form of
application for renewal of a licence and the fee payable
therefor under section 24 of this Act;
(n)
the form in
which application for issue of a Digital Signature
Certificate may be made under clause (a) of sub-section (1)
of section 36 of this Act;
(o)
the fee to be
paid under sub-section (2) of section 36 of this Act;
(p)
the
qualifications and experience which Adjudicating officer
shall possess under sub-section (2) of section 50 of this
Act;
(q)
the manner in
which the Adjudicating officer shall hold inquiry under
sub-section (1) of section 51 of this Act;
(r)
the procedure
for inquiry into misconduct or physical or mental incapacity
of the Presiding Officer under sub-section (2) of section 55
of this Act;
(s)
the form in
which appeal may be filed and the fee thereof under
sub-section (2) of section 58 of this Act;
(t)
any other power
of a Civil Court required to be prescribed under clause (g)
of sub-section (2) of section 59 of this Act; and
(u)
any other matter
which is required to be, or may be, prescribed.
(3) Every notification made by
the Government under sub-section (2) of section 2 of this
Act and every rule made by it shall be laid, as soon as may
be after it is made, before the Parliament, while it is in
session, and if the Parliament resolves that the
notification or the rule should not be made, or to make any
modification in the notification or the rule, the
notification or the rule shall thereafter be of no effect or
have effect only in such modified form, as the case may be;
but, such annulment or modification shall be without
prejudice to the validity of anything previously done under
that notification or rule.
96. Power of Controller to
make regulations.- (1) The Controller may, after
consultation with the Cyber Regulations Advisory Committee
constituted under section 97 of this Act and with the
previous approval of the Government, by notification in the
Official Gazette, make regulations consistent with the
provisions of this Act and the rules made thereunder to
carry out the purposes of this Act.
(2) In particular,
and without prejudice to the generality of the foregoing
power, such regulations may provide for all or any of the
following matters, namely:-
(a)
the particulars
relating to maintenance of database containing the
disclosure record of every Certifying Authority under clause
(n) of section 19 of this Act;
(b)
the conditions
and restrictions subject to which the Controller may
recognise any foreign Certifying Authority under sub-section
(1) of section 20 of this Act;
(c)
the terms and
conditions subject to which a licence may be granted under
clause (b) of sub-section (3) of section 22 of this Act;
(d)
other standards
to be observed by a Certifying Authority under clause (d) of
section 31 of this Act;
(e)
the manner in
which the Certifying Authority shall disclose the matters
specified in sub-section (1) of section 35 of this Act;
(f)
the particulars
of statement which shall accompany an application under
sub-section (1) of section 36 of this Act;
(g)
the manner by
which the subscriber shall communicate the compromise of
private key to the Certifying Authority under sub-section
(2) of section 44 of this Act.
(3) Every regulation made
under this Act shall be laid, as soon after it is made as
may be, before the Parliament and if the Parliament resolves
that the regulation should not be made or to make any
modification in the regulation, the regulation shall
thereafter be of no effect or have effect only in such
modified form, as the case may be:
Provided that any such
annulment or modification shall be without prejudice to the
validity of anything previously done under that regulation.”
In the Indian Act, provision
has been made for formation of an advisory committee named
as Cyber Regulations Advisory Committee for advising the
Government in matters connected with the Act.
We may make similar provision.
“97.
Cyber Regulations Advisory Committee.- (1) The
Government shall, as soon after the commencement of this Act
as may be, constitute a committee called the Cyber
Regulations Advisory Committee.
(2) The Cyber Regulations Advisory Committee shall consist
of a Chairman and such number of other official and
non-official members representing the interests principally
affected or having special knowledge of the subject-matter
as the Government may deem fit.
(3) The Cyber Regulations Advisory Committee shall advice –
(a)
the Government
either generally as regards any rules or for any other
purpose connected with this Act;
(b)
the Controller
in framing the regulations under this Act.
(4) There shall be paid to the
non-official members of such Committee such travelling and
other allowances as the Government may fix.
(5) The term of office of the
Chairman and the members of the Cyber Regulations Advisory
Committee may be fixed by the Government.”
As a result of enactment of
the proposed Act, certain consequential amendments are
required to be made in the Penal Code, 1860, the Evidence
Act, 1872, the Bankers’ Books Evidence Act, 1891 and the
Bangladesh Bank Order, 1972. The proposed amendments are as
follows:-
“98.
Amendments of other Acts.- (1) The Penal Code, 1860 (Act
XLV of 1860) shall be amended in the manner specified in the
First Schedule to this Act.
(2) The Evidence Act, 1872 (Act I of 1872) shall be amended
in the manner specified in the Second Schedule to this Act.
(3) The Bankers’ Books Evidence Act, 1891 (Act XVIII of
1891) shall be amended in the manner specified in the Third
Schedule to this Act.
(4) The Bangladesh Bank Order, 1972 (President’s Order No.
127 of 1972) shall be amended in the manner specified in the
Fourth Schedule to this Act.
The First Schedule
(See section 97 (1)
Amendments to the Penal
Code, 1860 (Act XLV of 1860).
1.
After section 29, the
following section shall be inserted, namely:-
“29
A. Electronic record.-
The words, “electronic record”, shall have the meaning
assigned to them in clause (t) of section 3 of the
Information Technology (Electronic Transaction) Act,
20.........”
2. In section 167, for the
words, “such public servant, charged with the preparation or
translation of any document, frames or translates that
document,” the words, “such public servant, charged with the
preparation or translation of any document or electronic
record, frames, prepares or translates that document or
electronic record,” shall be substituted.
3. In
section 172, for the words, “produce a document in a Court
of Justice,” the words, “produce a document or electronic
record in a Court of Justice,” shall be substituted.
4. In
section173, for the words, “to produce a document in a Court
of Justice ,” the words, “to produce a document or
electronic record in a Court of Justice,” shall be
substituted.
5. In
section 175, for the word, “document”, at both the places
where it occurs, the words, “document or electronic record,”
shall be substituted.
6. In
section 192, for the words, “makes any false entry in any
book or record, or makes any document containing a false
statement,” the words, “makes any false entry in any book or
record or electronic record or makes any document or
electronic record containing a false statement,” shall be
substituted.
7. In
section 204, for the word, “document,” at both the places
where it occurs, the words, “document or electronic record,”
shall be substituted.
8. In
section 463, for the words, “Whoever makes any false
documents or part of a document with intent to cause damage
or injury,” the words, “Whoever makes any false documents or
false electronic record or part of a document or electronic
record, with intent to cause damage or injury,” shall be
substituted.
9. In
section 464,
(a)
for the portion beginning with
the words, “A person is said to make a false document,” and
ending with the words, “by reason of deception practised
upon him, he does not know the contents of the document or
the nature of the alteration,” the following shall be
substituted, namely:-
“A person is
said to make a false document or false electronic record-
First- Who
dishonestly or fraudulently-
(a)
makes, signs, seals or
executes a document or part of a document;
(b)
makes or transmits any
electronic record or part of any electronic record;
(c)
affixes any digital signature
on any electronic record;
(d)
makes any mark denoting the
execution of a document or the authenticity of the digital
signature,
with the
intention of causing it to be believed that such document or
part of document, electronic record or digital signature was
made, signed, sealed, executed, transmitted or affixed by or
by the authority of a person by whom or by whose authority
he knows that it was not made, signed, sealed, executed or
affixed; or
Secondly- Who, without
lawful authority, dishonestly or fraudulently, by
cancellation or otherwise, alters a document or an
electronic record in any material part thereof, after it has
been made, executed or affixed with digital signature either
by himself or by any other person, whether such person be
living or dead at the time of such alteration; or
Thirdly- Who dishonestly or
fraudulently causes any person to sign, seal, execute or
alter a document or an electronic record or to affix his
digital signature on any electronic record knowing that such
person by reason of unsoundness of mind or intoxication
cannot, or that by reason of deception practised upon him,
he does not know the contents of the document or electronic
record or the nature of the alteration.”,
(b)
after Explanation 2, the
following Explanation shall be inserted at the end, namely:-
“Explanation 3- For the
purposes of this section, the expression, “affixing digital
signature”, shall have the meaning assigned to it in clause
(e) of section 3 of the Information Technology (Electronic
Transaction) Act, 20........”
10. In
section 466.-
(a)
for the words, “Whoever forges
a document,” the words, “Whoever forges a document or an
electronic record,” shall be substituted;
(b)
the following Explanation
shall be inserted at the end, namely:-
“Explanation.- For the
purposes of this section, “register” includes any list, data
or record of any entries maintained in the electronic form
as defined in clause (r) of section 3 of the Information
Technology (Electronic Transaction) Act, 20.........”
11. In
section 468, for the words, “document forged”, the words,
“document or electronic record forged”, shall be
substituted.
12. In
section 469, for the words, “intending that the document
forged,” the words, “intending that the document or
electronic record forged,” shall be substituted.
13. In
section 470, for the word, “document”, in both the places
where it occurs, the words, “document or electronic record,”
shall be substituted.
14. In
section 471, for the word, “document,” wherever it occurs,
the words, “document or electronic record”, shall be
substituted.
15. In
section 474, for the portion beginning with the words,
“Whoever has in his possession any document,” and ending
with the words, “if the document is one of the description
mentioned in section 466 of this Code,” the following shall
be substituted, namely:-
“Whoever has in his
possession any document or electronic record, knowing the
same to be forged and intending that the same shall
fraudulently or dishonestly be used as genuine, shall, if
the document or electronic record is one of the description
mentioned in section 466 of this Code,”
16. In
section 476, for the words, “any document,” the words, “any
document or electronic record,” shall be substituted.
17. In
section 477 A, for the words, “book, paper, writing,” at
both the places where they occur, the words, “book,
electronic record, paper, writing”, shall be substituted.
The Second Schedule
(Sec section 97 (2))
Amendments to the Evidence
Act, 1872 (Act I of 1872)
1.
In section 3,-
(a)
in the definition of
“Evidence”, for the words, “all documents produced for the
inspection of the Court,” the words, “all documents
including electronic records produced for the inspection of
the Court,” shall be substituted;
(b)
after the definition of “not
proved”, the following shall be inserted, namely:-
“the expressions,
“addressee”, “Certifying Authority”, “Controller”, “digital
signature”, “Digital Signature Certificate,” “electronic
form”, “electronic record,” “information,” “originator”,
secure electronic record,” “secure digital signature” and
“subscriber” shall have the meaning respectively assigned to
them in the Information Technology (Electronic Transaction)
Act, 20..............”
2.
In section 17, for the words,
“oral or documentary”, the words, “oral or documentary or
contained in electronic form,” shall be substituted.
3.
After section 22, the
following section shall be inserted, namely:-
“22A. When oral admission as to contents of
electronic records are relevant.-
Oral
admissions as to the contents of electronic records are not
relevant, unless the genuineness of the electronic record
produced is in question.”
4. In
section 34, for the words, “Entries in the books of
account,” the words, “Entries in the books of accounts,
including those maintained in an electronic form,” shall be
substituted.
5. In
section 35, for the word, “record”, in both the places where
it occurs, the words, “record or an electronic record,”
shall be substituted.
6. For
section 39, the following section shall be substituted,
namely:-
“39. What evidence to be given when statement
forms part of a conversation, document, electronic record,
book or series of letters or papers.-When
any statement of which evidence is given forms part of a
longer statement, or of a conversation or part of an
isolated document, or is contained in a document which forms
part of a book, or is contained in part of an electronic
record or of a connected series of letters or papers,
evidence shall be given of so much and no more of the
statement, conversation, document, electronic record, book
or series of letters or papers as the Court considers
necessary in that particular case to the full understanding
of the nature and effect of the statement, and of the
circumstances under which it was made.”
7. After
section 47, the following section shall be inserted,
namely:-
“47 A. Opinion as to digital signature when
relevant.-
When the Court has to form an opinion as to the digital
signature of any person, the opinion of the Certifying
Authority which has issued the Digital Signature Certificate
is a relevant fact.”
8. In
section 59, for the words, “contents of documents,” the
words, “contents of documents or electronic records,” shall
be substituted.
9. After
section 65, the following section shall be inserted,
namely:-
“65 A. Special provisions as to evidence
relating to electronic records.-
The contents of electronic records may be proved in
accordance with the provisions of section 65 B.
65 B. Admissibility of electronic records.-
(1) Notwithstanding anything contained in
this Act, any information contained in an electronic record
which is printed on a paper, stored, recorded or copied in
optical or magnetic media produced by a computer
(hereinafter referred to as the computer output) shall be
deemed to be also a document, if the conditions mentioned in
this section are satisfied in relation to the information
and computer in question and shall be admissible in any
proceedings, without further proof or production of the
original, as evidence of any contents of the original or of
any fact stated therein of which direct evidence would be
admissible.
(2) The conditions referred
to in sub-section, (1) of this section in respect of a
computer output shall be the following, namely:-
(a)
the computer output containing
the information was produced by the computer during the
period over which the computer was used regularly to store
or process information for the purposes of any activities
regularly carried on over that period by the person having
lawful control over the use of the computer;
(b)
during the period referred to
in clause (a) of this sub-section, information of the kind
contained in the electronic record or of the kind from which
the information so contained is derived was regularly fed
into the computer in the ordinary course of the said
activities;
(c)
throughout the material part
of the period referred to in clause (a) of this sub-section,
the computer was operating properly or, if not, then in
respect of any period in which it was not operating properly
or was out of operation during that part of the period, was
not such as to affect the electronic record or the accuracy
of its contents; and
(d)
the information contained in
the electronic record reproduces or is derived from such
information fed into the computer in the ordinary course of
the said activities.
(3) Where over any period, the
function of storing or processing information for the
purposes of any activities regularly carried on over that
period as mentioned in clause (a) of sub-section (2) of this
section was regularly performed by computers, whether-
(a)
by a combination of computers
operating over that period; or
(b)
by different computers
operating in succession over that period; or
(c)
by different combinations of
computers operating in succession over that period; or
(d)
in any other manner involving
the successive operation over that period, in whatever
order, of one or more computers and one or more combinations
of computers,
all the
computers used for that purpose during that period shall be
treated for the purposes of this section as constituting a
single computer; and references in this section to a
computer shall be construed accordingly.
(4) In any proceedings where
it is desired to give a statement in evidence by virtue of
this section, a certificate doing any of the following
things, that is to say-
(a)
identifying the electronic
record containing the statement and describing the manner in
which it was produced;
(b)
giving such particulars of any
device involved in the production of that electronic record
as may be appropriate for the purpose of showing that the
electronic record was produced by a computer;
(c)
dealing with any of the
matters to which the conditions mentioned in sub-section (2)
of this section relate,
and purporting to be signed by
a person occupying a responsible official position in
relation to the operation of the relevant device or the
management of the relevant activities (whichever is
appropriate) shall be evidence of any matter stated in the
certificate; and for the purposes of this sub-section it
shall be sufficient for a matter to be stated to the best of
the knowledge and belief of the person stating it.
(5) For the purposes of this
section,-
(a)
information shall be taken to
be supplied to a computer if it is supplied thereto in any
appropriate form and whether it is so supplied directly or
(with or without human intervention) by means of any
appropriate equipment;
(b)
whether in the course of
activities carried on by any officials, information is
supplied with a view to its being stored or processed for
the purposes of those activities by a computer operated
otherwise than in the course of those activities, that
information, if duly supplied to that computer, shall be
taken to be supplied to it in the course of those
activities;
(c)
a computer output shall be
taken to have been produced by a computer whether it was
produced by it directly or (with or without human
intervention) by means of any appropriate equipment.
Explanation.- For the
purposes of this section, any reference to information being
derived from other information shall be a reference to its
being derived therefrom by calculation, comparison or any
other process.”
10. After
section 67, the following section shall be inserted,
namely:-
“67 A. Proof as to digital signature.-
Except in the case of a secure digital signature, if the
digital signature of any subscriber is alleged to have been
affixed to an electronic record, the fact that such digital
signature is the digital signature of that subscriber must
be proved.”
11. After
section 73, the following section shall be inserted,
namely:-
“73 A. Proof as to verification of digital
signature.-
In order to
ascertain whether a digital signature is that of the person,
by whom it purports to have been affixed, the Court may
direct-
(a)
that person or the Controller
or the Certifying Authority to produce the Digital Signature
Certificate;
(b)
any other person to apply the
public key listed in the Digital Signature Certificate and
verify the digital signature purported to have been affixed
by that person.”
12. After
section 84, the following section shall be inserted,
namely:-
“84A. Presumption as to Gazettes in
electronic forms.-
The Court shall presume the genuineness of every electronic
record purporting to be the Official Gazette, or purporting
to be electronic record directed by any law to be kept by
any person, if such electronic record is kept substantially
in the form required by law and is produced from proper
custody.”
13. After
section 85, the following sections shall be inserted,
namely:-
“85A. Presumption as to electronic
agreements.-
The Court
shall presume that every electronic record purporting to be
an agreement containing the digital signatures of the
parties was so concluded by affixing the digital signatures
of the parties.”
85B. Presumption as to electronic records and
digital signatures.-
(1) In any proceedings involving a secure electronic record,
the Court shall presume, unless the contrary is proved, that
the secure electronic record has not been altered since the
specific point of time to which the secure status relates.
(2) In any proceedings
involving secure digital signature, the Court shall presume,
unless the contrary is proved, that
(a)
the secure digital signature
is affixed by the subscriber with the intention of signing
or approving the electronic record;
(b)
except in the case of a secure
electronic record or a secure digital signature, nothing in
this section shall create any presumption relating to the
authenticity and integrity of the electronic record or any
digital signature.
85C. Presumption as to
Digital Signature Certificates.- The Court shall
presume, unless the contrary is proved, that the information
listed in a Digital Signature Certificate is correct, except
for information specified as subscriber information which
has not been verified, if the certificate was accepted by
the subscriber.”
14. After
section 88, the following section shall be inserted,
namely:-
“88A. Presumption as to electronic messages.-
The Court may presume that an electronic
message forwarded by the originator through an electronic
mail server to the addressee to whom the message purports to
be addressed corresponds with the message as fed into his
computer for transmission; but the Court shall not make any
presumption as to the person by whom such message was sent.”
15. After
section 90, the following section shall be inserted,
namely:-
“90A. Presumption as to electronic records
five years old.-
Where any
electronic record, purporting or proved to be five years
old, is produced from any custody which the Court in the
particular case considers proper, the Court may presume that
the digital signature which purports to be the digital
signature of any particular person was so affixed by that
person or any person authorised by him in this behalf.
Explanation.-
Electronic
records are said to be in proper custody if they are in the
place in which, and under the care of the person with whom,
they would naturally be; but no custody is improper if it is
proved to have had a legitimate origin, or if the
circumstances of the particular case are such as to render
such an origin probable.
This Explanation applies
also to section 84A.”
16.For
section 131, the following section shall be substituted,
namely:-
“131. Production of documents or electronic
records which another person, having possession, could
refuse to produce.-
No one shall be compelled to produce documents in his
possession or electronic records under his control, which
any other person would be entitled to refuse to produce if
they were in his possession or control, unless such
last-mentioned person consents to their production.”
The Third Schedule
(See section 97 (3)
Amendments to the Bankers’
Books Evidence Act, 1891,
(Act XVIII of 1891)
1.
In section 2,-
(a)
for clause (3), the following
clause shall be substituted, namely:-
“(3) “bankers’ books”
include ledgers, day-books, cash-books, account books and
all other books used in the ordinary business of a bank
whether kept in the written form or as printouts of data
stored in a floppy, disc, tape or any other form of
electro-magnetic data storage device;”
(b)
for clause (8), the following
clause shall be substituted, namely:-
“(8) “certified copy” means
when the books of a bank,-
(a)
are maintained in written
form, a copy of any entry in such books together with a
certificate written at the foot of such copy that it is a
true copy of such entry, that such entry is contained in one
of the ordinary books of the bank and was made in the usual
and ordinary course of business and that such book is still
in the custody of the bank, and where the copy was obtained
by a mechanical or other process which in itself ensured the
accuracy of the copy, a further certificate to that effect,
but where the book from which such copy was prepared has
been destroyed in the usual course of the bank’s business
after the date on which the copy had been so prepared, a
further certificate to that effect, each such certificate
being dated and subscribed by the principal accountant or
manager of the bank with his name and official title; and
(b)
consist of printout of data
stored in a floppy, disc, tape or any other electro-magnetic
data storage device, a printout of such entry or a copy of
such printout together with such statements certified in
accordance with the provisions of section 2A.”
2.
After section 2, the following
section shall be inserted, namely:-
“2A. Conditions in the printout.-
A
printout of an entry or a copy of a printout referred to in
clause (8) of section 2 of this Act shall be accompanied by
the following, namely:-
(a)
a certificate to the effect
that it is a printout of such entry or a copy of such
printout by the principal accountant or branch manager; and
(b)
a certificate by a person
in-charge of the computer system containing a brief
description of the computer system and the particulars of-
(i)
the safeguards adopted by the
system to ensure that data is entered or any other operation
is performed only by authorised persons;
(ii)
the safeguards adopted to
prevent and detect unauthorised change of data;
(iii)
the safeguards available to
retrieve data that is lost due to systemic failure or any
other reasons;
(iv)
the manner in which data is
transferred from the system to removable media like
floppies, discs, tapes or other electro-magnetic data
storage devices;
(v)
the mode of verification in
order to ensure that data has been accurately transferred to
such removable media;
(vi)
the mode of identification of
such data storage devices;
(vii)
the arrangements for the
storage and custody of such storage devices;
(viii)
the safeguards to prevent and
detect any tampering with the system; and
(ix)
any other factor which will
vouch for the integrity and accuracy of the system.
(c)
a further certificate from the
person in-charge of the computer system to the effect that
to the best of his knowledge and belief, such computer
system operated properly at the material time, he was
provided with all the relevant data and the printout in
question represents correctly, or is appropriately derived
from, the relevant data.”
The Fourth Schedule
(See section 97 (4)
Amendment to the Bangladesh
Bank Order, 1972
(President’s Order No. 127
of 1972)
In the Bangladesh Bank Order,
1972, in article 82, in clause (2) after sub-clause (k), the
following sub-clause shall be inserted, namely:-
“(kk) the regulation of fund
transfer through electronic means between the banks or
between the banks and other financial institutions referred
to in clause (c) of article 50, including the laying down of
the conditions subject to which banks and other financial
institutions shall participate in such fund transfers, the
manner of such fund transfers and the rights and obligations
of the participants in such fund transfers.”
|
