Jivesh Jha
(Nepal Live Today, a prominent English online news portal, 20 October 2023)
The book by Dr Newal Chaudhary provides a critical investigation into the key issues, principles and themes on cybercrimes, Nepal’s journey with cyber democracy and international practices.
Of late, we live in a digital democracy where people quarrel with bytes instead of batons. In the information age, data works as a catalyst to cause cybercrimes. The cybercrimes could be in the nature of hacking, online fraud transactions, identity theft, cyber bullying, cyber harassment, child pornography, data theft, cyber stalking, and among others. As opposed to the traditional nature of crimes wherein the material objects were used to commit the crimes, the cybercrimes are committed with the help of data and the internet.
In this context, Dr Newal Chaudhary’s The Art of Cyber Law & Cyber Crimes published by Mission Legal Services Pvt Ltd, Kathmandu (in July, 2023), provides a concise introduction to cybercrimes, evolution of cyber law, emerging issues in cyber law, classification of cybercrimes, the use of Artificial Intelligence (AI) in cybercrimes, Intellectual Property Rights (IPR) of digital goods and cyberspace, E-commerce and legal issues, laws relating to cybercrimes in Nepal, and internet governance and international laws relating to cybercrimes.
The book brings together a collection of seven chapters which provide a critical investigation into the key issues, principles and themes on cybercrimes, Nepal’s journey with cyber democracy and international practices.
A short foreword by Prof Dr DN Parajuli, an eminent jurist and Campus Chief of Nepal Law Campus, Kathmandu, sets the tone for the discussion on the civil and international laws and practices relating to cybercrimes: “This book bridges theory and practice in cyber law. “The Art of Cyber Law & Cyber Crimes” is not just theoretical; it is a practical guide tackling pressing cyber law issues from data privacy to intellectual property rights, cyber bullying to hacking. Dr Chaudhary covers these topics clearly and thoroughly,” he writes.
In the first chapter, Dr Chaudhary, who is a Law faculty member at Tribhuvan University, sheds light on the basic concepts, evolution, nature, emerging trends, sources and need of cyber law. Understanding the principles of criminal law is essential to prosecute the offenders and to address the legal implications of the cyber activities, like hacking, identity theft, phishing, cyberbullying and online frauds,” argues Dr Chaudhary. After all, cyber law is multidisciplinary in nature.
The journey of cyber law began in Nepal with the enactment of the Electronic Transaction Act, 2063 BS (2006 AD). Cyber law is rapidly evolving and multi-disciplinary in nature that employs both civil and criminal laws. “Its nature is global, requiring international co-operation to address cybercrimes and enforce regulation” argues he, adding, that the cybercrimes have potential to transcend the national boundaries, as “the internet and digital technologies have facilitated worldwide connectivity and communication.”
In this respect, cybercrimes can occur from anywhere around the world, making it challenging to determine the jurisdiction in which the crime was initially originated. In fact, cyberspace’s ostensible multi-dimension suggests that the cyber law cannot be studied in isolation; rather it requires the overall understanding of various fields, like technology, law, economics, and psychology to comprehend the actual implications in the crime.
In his book, Dr Chaudhary devotes a good deal of sections to explain the sources and scope of cyber law. For instance, “The scope of cyber law includes areas such as regulating electronic transactions, protecting personal data and privacy, safeguarding intellectual property rights, preventing cyber crimes, and addressing issues relating to online freedom of speech and expression and its content regulation.” he writes on page 17.
The online platforms provide opportunity to the people from all walks of life to participate in public discourse. But, it’s unfortunate to see that people often use digital platforms as a sword to cause defamation, incite hatred or promote hate speech. He opines that defamation, false accusations and hate speech could not be pardoned in the name of freedom of speech and expression. Every right has restrictions.
In Chapter 2, Dr Chaudhary sheds light on different dimensions and historical development of cyber law in its entire length and breadth. He employs tables to explain the fundamental differences between computer crimes and cyber crimes. For instance, crimes like, hacking, data breaches and denial-of-service attacks which are exclusively committed by the use of computers could be categorized under computer crimes whereas phishing, malware attacks, online fraud could be placed in the nature of cybercrimes. The former is prosecuted under traditional criminal law, while the later is prosecuted under traditional criminal law plus cyber law. In this chapter, the concepts of AI, Nepal’s legal framework, constitutional landscape and international practices have also been explained by the author.
Chapter 3 deals with the concept of IPR of digital goods and cyber space. Prof Chaudhary argues that cybercrimes do not solely limit themselves to fraud, cyber bullying, identity theft, but also to infringement of copyright and trademark of various business and other organizations. “Intellectual property rights face several challenges and limitations in the realms of cyberspace,” he maintains on page 118.
Digital privacy, difficulty in enforcement, privacy concerns, domain name disputes, different regulation and licensing requirements in different countries, and determining the boundaries of fair use are some of the key challenges before the IPR in the digital age.
In Chapter 4, he critically studies the frontiers of E-commerce in the light of prevailing legal frameworks. He assesses the domestic and international laws recognizing electronic commerce. For instance, the concept of digital signature has been duly recognized under Section 2 of the Electronic Transaction Act (2063 BS). The advent of digital payment and digital cash could be taken as a boon for electronic commerce.
Nevertheless, “Preventing fraud and deceptive practices is a significant concern in e-commerce,” argues Dr Chaudhary on page 133.
Dr Chaudhary is right in holding that the world community deserves to introduce strong cyber security measures to protect the data of citizens and government organizations.
In Chapter 5, the author discusses the prevailing laws and policies relating to cybercrime. He has discussed the relevant provisions of international conventions, judicial decisions of the Supreme Court of Nepal, and the global precedents. Our laws, like National Criminal Code, 2074 BS (2017), Electronic Transaction Act, 2063, Copyright Act, 2059 BS (2002), and Consumer Protection Act, 2075 (2018) host plethora of provisions that supplement and supplant the cyber law regime.
Dr Chaudhary then goes on to discuss the concept of internet governance. The internet governance refers to the processes, policies and mechanism by which the development, operation and the use of the internet are managed and coordinated” writes he on page 181. He argues that it’s high time for the world communities to invest in cyber diplomacy. The government of the United States is to be credited for pioneering cyber diplomacy by introducing the US International Strategy for Cyberspace. This document happens to be the first government document concentrating on the international elements of cyber threats.
In the final chapter—chapter seven—Dr Chaudhary discusses the international conventions relating to cybercrime. The Budapest Convention on Cybercrime, which entered into force on July 1, 2004, happens to be the world’s first international treaty designed to focus on addressing the challenges posed by cybercrime. This chapter deals with various dimensions of international laws and suggests ways for bringing reformation in existing legislation.
If there is one reason to read Dr Chaudhary’s timely exposition is his endeavors to give conceptual clarities on cybercrime and their recognition under cyber law. He does not only discuss Nepal’s perspective on cyber law but also devotes a good deal of section for international precedents. His book should be a mandatory reading for the lawyers, judges, judicial officers, teachers and students of various streams, including that of social sciences and law.
jhajivesh@gmail.com
https://www.nepallivetoday.com/2023/10/20/if-you-want-to-know-about-cybercrimes-read-the-art-of-cyber-law-cyber-crimes/
