How can she hack ?

Portrait of Henry VIII

With growing social and financial independence, there has been a rise in matrimonial disputes in India. Matrimonial disputes when contested by spouses turn out to be a messy affair. For instance, in cases of maintenance there have been reports where husbands have under-declared their income for which wives have even taken recourse to the Right to Information Act (like here).

Similarly, it is not wholly unexpected that a wife accesses her husbands personal email account to dig out dirt on him. To my mind there are two major legal issues which may arise out of this. The first concerns the legality of the evidence gathering, as to whether it is permissible or is it a crime. Secondly irrespective of the legality of the evidence gathering, what is the status of the evidence itself, in as much, can the evidence be utilized in legal proceedings such as divorce or maintenance.

Legality of Evidence Gathering

The first issue regarding the legality of accessing a spouse’s email account without their permission has been dealt to a limited extent by the decision of the Adjudication Officer, Maharashtra in the case of Vinod Kaushik v. Madhvika Joshi (Complaint Case №2/2010) (judgement text here , hat-tip NAAVI).

The Adjudicating Officer who has original jurisdiction to adjudicate civil contraventions under the Information Technology Act, 2000 held that, (a) the wife committed “unauthorised access” by accessing her husband’s and father-in-law’s email accounts to gather evidence; (b) However, no damages could be awarded to the husband, since the evidence gathered through the “unauthorised access” was only supplied to the police and the court which was hearing her case for dowry harassment.

“Unauthorised Access”

The reasoning which was adopted for reaching the first finding, i.e. of “unauthorized access” was as follows:

“Section 43 of the IT Act clearly applies, regarding unauthorised access. The Respondent has not only accessed the email account of her husband, but also of her father-in-law, and has taken print outs of chat sessions between the husband and his friends, including those with wife of his friend, and also of her father-in-law’s chat sessions with his relatives and friends. Thus, she has violated the privacy of not only the complainants, but also of their friends and relatives, who had by no stretch of imagination, authorised her to look into these private chat sessions. “

“Even in family or company premises, if someone has forgotten to log out, and another person comes across the open emails when he/she tries to log into their own Gmail (or other email or Facebook or Skype etc.) account, the normal expectation is that the new person will immediately log out and not snoop into other emails or chat sessions… Hence, regardless of the fact whether the Respondent №1 knew the passwords, or made intelligent guesses, or used some software to crack the passwords, it is clear that she unauthorisedly accessed the emails and chat sessions, and violated the provisions of the IT Act… If she had any suspicion that material evidence of wrongdoing could be found, she should have approached the Police regarding this, and let the investigative agencies take action as per law.”

Crop of Catherine Parr, by unknown artist. See...

The problems with this reasoning is that the Adjudicator seems to have gauged the “unauthorized access” under Sec. 43(1)(a), from the implicit boundaries drawn by the estrangement of the spouses. This is in the absence of specific reference to evidence or any clear express instruction by the husband or the father-in-law to prevent the wife from accessing their account. Moreover in the breadth of the judgement there is mention that, (a) the spouses accessed their email through a common computer; (b) the passwords of the husband were within the knowledge of the wife. In my opinion the adjudicator places a very low bar for demonstrating, “unauthorised access”. This may lead to a flood of complaints. It would appropriate that to gauge unauthorized access, there should be a clear instruction as to the level of access which is permitted to another party.

Moreover, the point as to the wife accessing the conversations of the husband with his friends and thus breaching the privacy of his friends is to me, misplaced. The present proceeding is pertaining to “unauthorised access” and should be limited to it. Though “unauthorised access” is one form of breaching the privacy of a person, by making reference to a broader “privacy” claim is not open in such a proceeding. It is also worth mentioning that the husbands friends have not approached or complained, they are not parties to this case or hearing, there is no locus to examine their purported claims or injuries in the proceedings.

“Unauthorised Access” but no Compensation

After a breach of Section 43 has been determined the Adjudicator is then called on to determine the compensation which is payable to the Complainant. This is as per the guiding criteria under Sec. 47 of the IT Act which states :

“S. 47. Factors to be taken into account by the adjudicating officer. — While adjudging the quantum of compensation under this Chapter, the adjudicating officer shall have due regard to the following factors, namely —

(a) the amount of gain of 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;

© the repetitive nature of the default.”

The adjudicating officer, while making reference to Sec. 47 seems to give primacy to the “good faith” utilisation of the information taken by the Wife. In holding that the wife only disclosed the information she extracted to the police and the court it holds she is not liable for any compensation. The reasoning as adopted by the adjudicator is set out below:

“The Complainants have drawn attention to “repetitive nature of default” under Section 47 of IT Act, and mention about loss of reputation. After carefully going through all the Records available before me and arguments made by various parties, my conclusion is that the principles of Natural Justice and Balance of Convenience lie mainly in favour of Respondent, as she used the “evidence” so collected only to give it to Police and the Court action has resulted in any kind of loss to the Complainants, the Respondent cannot be blamed. It is also relevant to note that the evidence is in a Dowry Case, filed within first few months of marriage. Hence, despite the fact that unauthorised access is proved, the case for heavy damages is not made out.”

I find this result incredibly counter-intuitive. Such a result leads to a holding that even when there is finding as to “unauthorized access”, in some cases no no penalty will be levied. To me even the statutory language does not support such a conclusion. Sec. 43 when making a reference to damages states quite unequivocally that, a person breaching Sec. 43, “shall be liable to pay damages by way of compensation to the person so affected”. Now, while “shall” may be read differently (in some cases “shall” can be read as “may”) and could be reasoned to include wide discretion to the Adjudicating Officer, this has not been discussed or reasoned so in the case. Moreover, Sec. 43 would be pretty much pointless if no penalty is levied.

Admissibility of the Illegal Evidence in Dowry Proceedings

I can find no fault in the reasoning of the Adjudicating Officer, where he holds that questions of admissibility of the evidence which was gathered by the “unauthorised access” will be dealt by the court which is vested with the jurisdiction to hear the dowry proceedings. Here it has been held that:

“As far as the question of admissibility of evidence collected by questionable means in the dowry case is concerned, it is for the Hon’ble Courts to decide the use of such evidence on case to case basis, as the context and circumstances of each are highly different.”

Here it may be useful to refer to the judgement of Rayala M. Bhuvaneswari vs Nagaphanender Rayala (here). The judgement, concerned a husband secretly taping conversations of his wife to succeed in the divorce proceedings. The court ruling on the admissibility of such evidence held, that due to a fiduciary relationship between the parties as well as the wifes right to privacy the tapes were inadmissible as evidence. By no means is this a settled position in law as Courts have previously compelled medical examinations in paternity and maintenance cases. However, the facts of this case are most closely aligned to the present factual matrix.

So what do the readers think ? Does a law without a penalty make sense. Was the Adjudicating Officer correct in holding that the “unauthorised access” does not entitle the husband to claim any damages ?

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