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‘Hacking’ is a crime, which entails cracking systems and gaining unauthorized access to the data stored in them. Recently, there have been certain incidents where the hacker has hacked into sites and added/posted malicious in decent material on the site. The incidents most likely happen with the intension of mischief and causing damage by way of defamation, etc, rather than anything else.

The real tangible threat of ‘hacking’ comes in when an unauthorized access to a system is done with an intention of committing further crimes like fraud, misrepresentation, downloading data, in order to commit infringement of copyright, accessing sensitive and top secret data from defense sites, etc. Some of the most common types of fraud as committed on the net include bogus online investment newsletters, which give a biased and true advice on stocks and securities thereby by fictionally giving a pull to the share value of bogus companies, etc.

Firstly, let us view the offence of hacking in terms of India Panel Code (IPC).The provision that comes close to describing hacking is ‘criminal trespass’. But to prove criminal trespass under Section 441 of the IPC, the ingredients of “unauthorized entry into or upon property against the will of the person in possession” and/or “lawfully obtained entry but wrongly remaining thereon” must be satisfied

In applying the section to hacking on the Internet the prime question that needs to be answered is as to whether website is a ‘property’. For this it is imperative to consider the computer or the virtual area of the net as a ‘property’. In order to do this, we must consider the common jargon used to describe the world of Internet including ‘site’, home page’, ‘visiting a site’ and ‘traveling on the super highway’ are just a few examples. Thus, as trespass actions are grounded in the idea of protecting the owners control over real property, there is no inherent reason as to why the owners control over websites could not be considered as species of property subject to trespass. It is for this reason that hacking is made a crime punishable under Section 66 (2) of the Information Technology (IT) Act, 2000, providing for an imprisonment up to 3 years or with fine up to Rs 2 lakhs or with both.

The next question of importance, which arises for consideration, is when a hacker has no intention to commit any further crimes after having trespassed unauthorizedly into the property of other. Whether such hacking can be said to constitute intimidation or annoyance. To author’s mind, the answer to the question is in the affirmative as any person unauthorizedly entering into your property certainly causes annoyance, which may also result into intimidation.

If the offence of hacking is committed with an intention of committing further offences, a parallel for such offences can be drawn from the offences of theft, fraud, mis-appropriation, forgery, nuisance, etc. If a person gains unauthorized access to the property (website) another, breaching confidentiality of electronic documents, the same is punishable under Section 72 of the IT Act punishable with an imprisionment up to 2 years or fine up to 1 lakh or with both.


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