Sandeep Mittal IPS

Effects of TRIPS Plus Provisions in International Trade Agreements upon Access to Medicines in Developing Countries

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JIPR Vol.22(6) [November 2017]

Sandeep Mittal
Former Director, LNJN NICFS (MHA)
New Delhi, India

Journal of Intellectual Property Rights (JIPR) : [776]
ISSN: 0975-1076 (Online); 0971-7544 (Print)
JIPR Vol.22(6) [November 2017] Page(s): 295-302


Abstract: Though the UN has envisaged that accessibility to essential medicines is a basic human right, a large number of people in developing countries are denied access to essential medicines. MNCs having the branded medicines have a tendency to choke the supply chain of cheaper generic medicines using the weapon of intellectual property rights. The TRIPS Agreement has set the minimum standard of protection of Intellectual Property but it has provisions of flexibilities such as compulsory licenses, parallel imports limitations to patent rights, etc., which can be used by member states to provide access to these essential medicines to their people. However, countries like US are using provisions which are over and above the flexibilities incorporated in TRIPS to deny access to essential medicines to people in developing countries. The accessibility of essential medicines to the population in developing countries as affected by these FTAs, ACTA, TPP and TTIP agreements have been examined in this paper and a case has been made out for the unity of the developing and least developed countries to deter US from choking the supply lines of the essential medicines to poor and needy.

Keywords: Doha Declaration, TRIPS, Free Trade Agreements, ACTA, TPP, TTIP, intellectual property rights

Both the Universal Declaration of Human Rights, 1948, (the Declaration),1 and the International Covenant on Economic, Social and Cultural Rights (the Covenant) require that “medicines are available, accessible, acceptable and of good quality”.2 All the states that are a party to the Covenant have the “legal obligation not to interfere with the rights conferred under the Declaration and the Covenant”.3 However, horizontal and vertical spatial inequalities in healthcare, including in terms of access to medicines, persist throughout the world.4 The mortality rate due to tuberculosis in the WHO African Region during the year 2013 was 42 per a population of 100,000, which is more than twice the global mortality rate (of 16 per a population of 100,000) and 42 times the mortality rate of the WHO American Region (of 1 per a population of 100,000).5 In 2013, in sub-Saharan Africa, out of 25 million people living with HIV, about 64 per cent did not have access to any ART.6 The lack of access to essential medicines in a country is the result of many factors, but the primary reason is the prevalence of high prices of the medicines, stemming from strong intellectual property protection.7 A “secondary analysis of medicine prices, availability, [and] affordability, in 36 developing and middle income countries”8 indicates that the median price difference for originator medicines is substantially higher, reaching up to a whopping figure of 380 per cent as compared to the generic equivalents of these medicines. This reinforces the demand for “switching from originator brand medicines to generic equivalents in the developing countries”, which could facilitate savings of up to 80 per cent on expenditures incurred on essential medicines, as illustrated in Fig. 1.9 Although, the TRIPS Agreement10 lays down minimum standards for the protection of intellectual property, and offers safeguards and flexibilities to prevent patent abuse, the developed countries like the US and the European Union (EU) nations are signing bilateral trade agreements to usurp the flexibilities ingrained in TRIPS. However, the US is consistently and aggressively using such FTAs to deny access to essential medicines to populations in developing countries. Therefore, the scope of this paper is limited to an analysis of the FTAs initiated by US. The flexibilities available in TRIPS are listed out in the paper with the objective of examining how the US is using bilateral FTAs11 and plurilateral (ACTA12, TPP13, TTIP14) agreements to coerce developing countries into accepting stringent ‘TRIPS plus’ provisions for satiating the ever-growing greed of the pharmaceutical industry and denying the poor and needy access to essential medicines. The paper also assesses other factors that constrain the availability of essential medicines for those in desperate need of the latter.

Figure 1 — Average percentage savings obtained by switching from originator brands to lowest priced generic equivalents for three individual medicines in the developing countries15

TRIPS Flexibilities, the Doha Declaration and Public Health

The TRIPS Agreement delineates the minimum global standards for the protection of intellectual property, and offers sufficient liberty (‘flexibilities’) to the Member States to adapt the ‘IP Regimes’ in consonance with their own socio-economic needs. It is legally binding and enforceable through the Dispute Settlement Understanding and is backed by sanctions. A consolidated overview16 of these ‘TRIPS-flexibilities’ aiding the availability of essential medicines is presented in Table 1. The ‘Doha Declaration’17 was adapted after a compromise was reached between the developing countries (mainly India and Brazil) and the developed countries (mainly US), which read as follows:

“We agree that the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health. Accordingly, while reiterating our commitments to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members’ right to protect public health and, in particular, to promote access to medicines to all. In this connection, we reaffirm the right of WTO members to use, to the full, the provisions in the TRIPS Agreement, which provide flexibility for this purpose.”18

The Doha Declaration further recognises various flexibilities, “according to and in the light of Paragraph 4 of Declaration, while maintaining commitments in the TRIPS Agreement”.19 Going a step further, it reiterated, and even more explicitly, that public health rights prevail over individual IP rights. This move was possible as the developing countries were well prepared and operated as one block, while also enjoying the active support of international NGOs.7

Recently, UNHRC passed the following resolution,20 despite objections from UK, Switzerland and European Union, which is a big leap for the poor populations in accessing essential medicines,

1. Recognizes that access to medicines is one of the fundamental elements in achieving progressively the full realization of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; [OP1, HRC resolution 12/24 and OP 2, HRC resolution 23/14]

2. Stresses the responsibility of States to ensure access for all, without discrimination, to medicines, in particular essential medicines, that are affordable, safe, efficacious and of quality; [based on OP2, HRC resolution 12/24]

3. Calls upon States to promote access to medicines for all, including through the use, to the full, of the provisions of the Agreement on Trade- Related Aspects of Intellectual Property Rights which provide flexibility for that purpose, recognizing that the protection of intellectual property is important for the development of new medicines, as well as the concerns about its effects on prices; [OP7, “g”, HRC resolution 17/14 and OP 5, “h”, HRC resolution 23/14]”

However, in order to benefit from such flexibilities, a country needs to not only frame or amend its national IP laws but also ensure the availability of and access to technology, financial resources, and trained interdisciplinary humanresources. The experiences of developing countries like South Africa,21 Thailand,22, 23 and India24, 25 are indicative of the difficulties being faced by the other developing and the Least Developed Countries (LDCs) in implementing ‘TRIPS flexibilities’ for making essential medicines available to their populations at affordable rates. Significantly, the failure to push through its own public health draft at Doha did not deter the US from using its domestic laws to ‘arm-twist’ countries like Argentina, South Africa and Guatemala by putting them on the ‘USTR 301 Watch List’. This action compelled them to toe the US line in bypassing the “TRIPS flexibilities and accepting ‘TRIPS Plus’ laws to institute more stringent pharmaceutical intellectual property protection”, thereby preventing access to essential medicines in these countries.26 There is no clear definition of ‘TRIPS plus’ but in principle, it refers to commitments that go beyond the TRIPS Agreement.27

The US-FTAs: ‘TRIPS Plus’…or ‘US Plus’…or ‘TRIPS Multiple’…

The consistent differential perspective on the standard of protection in TRIPS as the ‘floor’ (minimum standard) of the US and as the ‘ceiling’ (maximum standard) of the developing countries continues to be a driving force behind the aggressive efforts being made by the US to raise the ‘ceiling’, eliminate TRIPS flexibilities and plug loopholes in TRIPS.36 While playing the multi-level, multi-forum global governance card, countries like the US are able to extract TRIPS plus commitments from the economically vulnerable parties through Bilateral Investment Treaties, Bilateral Free Trade Agreements and Regional Free Trade Agreements37 by exerting pressure through the use of the Special 301 clause under the Trade Act, 1974, and the imposition of unilateral sanctions and negotiation of investment treaties.38 The US has signed a slew of such agreements and is currently negotiating a few more as listed in Table 2.
Most of these stringent provisions, crafted in close nexus with the branded originator drugs pharmaceutical industry,36 aim at promoting originator drugs and eliminating or delaying the entry of generic medicines, thus preventing access to essential medicines at an affordable cost.39 The US–Morocco FTA is considered as the most stringent of all the US FTAs. A summary of the general ‘TRIPS plus’ provisions affecting the availability of essential medicines in the US FTAs is presented in Table 3.

*V = Vietnam, J = Jordan, S = Singapore, C = Chile, M = Morocco, A = Australia, D = DR-CAFTA, B = Bahrain

Consider the views of the pharmaceutical industry on TRIPS plus provisions, as put forward by Micky Kantor,44 a former USTR turned lobbyist for the pharmaceutical industry, while trying to explain that the provisions of free trade agreements are not violative of the TRIPS Agreement, which reads as follows:

“Characterizing these provisions as TRIPS-plus is misleading,…. While it is true that these provisions often are more specific and provide greater intellectual property protection than that provided by the TRIPS Agreement, that does not mean they violate the TRIPS Agreement.”45

However, subsequently in the same document, he made his dubious intention clear, which read:

“Article 31, the Doha Declaration and the Paragraph 6 Compromise are fundamentally ‘exceptions’ to the intellectual property protections embodied in the TRIPS Agreement…..But these exceptions can not swallow the rule: strong intellectual property protections remain essential to foster innovation and creativity.”46

An analysis of the TRIPS plus provisions listed above leaves no doubt that these FTAs undermine the TRIPS flexibilities with their intention to block the supplychain of generic medicines and are thus fatal in terms of ensuring accessibility to essential drugs.31, 47

The Free Trade Agreements, from Bilateral to Plurilateral Mechanisms

The success in coercing many countries to sign FTAs encouraged the US to take bilateral negotiations to the next higher level of plurilateral negotiations. The US had been unsuccessful in imposing its own intellectual property standards on the developing countries since the advent of the TRIPS and Doha negotiations. Consequently, it began negotiating bilateral trade agreements, with each successive agreement building more ‘pluses’ on the predecessors, to achieve a cumulative effect,49 and creating more regional trade blocks likes ACTA, TPP and TTIP. The negotiations for these regional agreements were shrouded in secrecy, away from the gaze of the public and NGOs, to avoid pre-emption of their next moves by these democratic stakeholders. When some of these draft agreements were leaked into the public domain, there was a hue and cry because of their ominous implications for civil liberties and access to essential medicines. The European Parliament rejected it, despite the fact that the EU and its 22 members had signed the agreement. The TPP has been signed in 2016, but is still not in force while the TTIP is still under negotiation. The TPP and TTIP together would be the largest critical mass of support for ‘US-forced’ TRIPS plus laws (Fig. 2).

When the Senate passed the Trade Promotion Authority, the US President termed itas “……an important step toward ensuring [that] the United States can negotiate and enforce strong, high- standards trade agreements…..”.49

A summary of the TRIPS plus provisions in the ACTA and TPP and their effects on the availability of affordable medicines is presented in Table 4, clearly pointing to a systematic attempt to create more stringent standards, thus increasing the “barriers to access generic medicines either by intensifying such IP protections as existence and duration of exclusivity or by reducing the use of flexibilities such as compulsory licenses or parallel import”.50 The introduction of third-party liabilities, exemplary deterrent penalties and criminal offences illustrates how the US is determined to choke the global supply lines of essential medicines.

Figure 2: Schematic map showing the emergence of a Mega Free Trade Area

The US Government explicitly leveraged bilateral FTAs to influence regional and multilateral negotiations on ‘TRIPS plus’, thus triggering the onset of plurilateralism through six distinct mechanisms, viz., “chain reaction, pressure for inclusion, coalition building, emulation, legal interpretation and adherence”. This has fostered instability and fragmentation among the WTO members.55 The ‘TRIPS plus’ bilteral, regional and plurilateral agreements have also made it difficult for the affected populations to access essential medicines not only due to the lack of capacity and resources but more so because of strikes by the developed countries. This prompted the developing countries to strike back at the WTO, WIPO, and international regimes, giving rise to fears of a potential TRIPS-war.56, 57 If a sufficient number of countries sign these agreements, leading to the adoption of TRIPS plus standards, theUS would be able to use Article 4 of TRIPS to legitimately exert pressure upon multilateral forums like the WTO and WIPO,50 for laying down new international standards in line with the TRIPS plus provisions.48 The intellectual property protection regime is hence seen to be monopolistically shifting from the ‘TRIPS plus’ to a ‘TRIPS multiple’ regime in congruence with the US Government’s ‘military– political’ goals.58

However, access to essential medicines is also dependent on the political will and policies of individual countries. Public interest groups and NGOs play a crucial role in improving accessibility to medicines. Ensuring stringent checks on corrupt practices by pharmaceutical companies and procurement officials would also help improve the situation. The capacity building of countries in terms of technology and human resources for generic manufacturing would be an important factor in making countries self-reliant in the manufacture of generic medicines. However, the apprehension persists that geo-political considerations may influence governments to succumb to pressures from their military allies, compelling them to fall in line with the efforts of the US to block access to generic medicines throughout the world.


The right to public health, including access to essential medicines, is a basic human right and has precedence over the individual right of intellectual property. Ample flexibilities in this regard have been incorporated in the TRIPS Agreement and have been reiterated in the Doha Declaration. However, countries like the US are using the mechanism of bilateral and plurilateral FTAs having ‘TRIPS plus’ provisions to usurp these ‘TRIPS flexibilities’ for denying access to essential medicines to populations in developing and least developed countries. The emerging mega-regionals like ACTA, TPP and TTIP would worsen the situation by putting the affected populations to more hardships. The developing and least developed countries need to unite to prevent the US from altering the international law in world trade in the near future. In addition, international NGOs, all citizens, legislators and the judiciary in these countries need to become decisively proactive to ensure the uninterrupted supply of essential medicines for the public. This can be achieved only by curtailing the hegemony of the West and allowing the less developed nations to exercise their prudence and freedom to make essential medicines easily available for their populations while keeping the complicated issue of patents at bay.


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A Study of the Privacy Attitudes of the Users of the Social Network(ing) Sites and Their Expectations from the Law in India

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International Conference on Intelligent Systems Design and Applications
ISDA 2017: Intelligent Systems Design and Applications pp 1038-1051 | Cite as

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In an era of information revolution and Web 2.0 technologies, the Social Network(ing) Sites (SNSs) have become a popular medium for the freedom of expression, the networking and maintaining the networks with the strangers and known others. A large amount of personal data is disclosed by the users intentionally or unknowingly on these social networking sites. The protection of this data at residence and in motion and its further processing by SNSs and their third parties is a cause of concern. In the present study, the attitude of Indian users of SNSs towards data privacy and their expectations from law in India have been explored and analyzed to validate the need for creation of a data privacy law in India. This study would provide timely guidance for policy makers who are currently engaged in framing a data protection framework on the directions of Supreme Court of India by following due process of law.



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Asian Journal of Computer Science And Information Technology 7: 4 August (2017)

Sandeep Mittal
Cyber Security & Privacy Researcher
Former Director, LNJN NICFS (MHA)
New Delhi, India
Priyanka Sharma
Professor & Head,
Information Technology & Telecommunication,
Raksha Shakti University,
Ahmedabad, India


Abstract: A large amount of personal data is being collected in the form of metadata or personal identification data having the potential of invading the privacy of the data subject, even when collected anonymously. The consent is an instrument in the hands of data subjects to control their personal data in the context of EU data privacy framework. The consent plays an important role in legitimising the processing of personal data and EU has place high stakes on this concept at the cost of other legitimising factors like contract, which probably would be a more attractive proposition for market forces. There is a real possibility that by the time GDPR is adopted by member states, the enforcement of the violations of the provisions related to the consent becomes impossible and redundant in view of rapidly evolving information society services.

Keywords: Processing of Personal Data, Personal Data Protection, General Data Protection Regulation (GDPR), Right to Privacy, EU Data Protection Framework, Models of Consent


A large amount of personal data is being collected in the form of metadata or personal identification data having the potential of invading the privacy of the data subject, even when collected anonymously. In EU, though most of the member states recognise privacy as a fundamental right, and the right to data protection is generally derived as extension to this right [1], [2]. However, EU Primary Law viz., Charter of Fundamental Rights (CFR) of the European Union of 2000 [3], [4], [5], [6], Treaty on European Union [7] and the jurisprudence of the CJEU [8], now recognise data protection as a fundamental right. But this right is not absolute and “must be considered in relation to its function in society” [9] and is subject to the principle of proportionality and limitations of Article 52(1) CFR. European Court of Human Rights (ECtHR) recognises processing of personal data and its protection as encompassing the right to privacy.[10] The Article 16 of the TFEU formally turned the right to data protection into a separate fundamental right.[11] The legitimate processing of personal data need considered justification, the consent of the data subject being one of these. In this essay, the legitimising role of consent under current EU Data Protection Framework and the new GDPR would be critically analysed.

EU Framework on Personal Data Protection

The Data Protection Directive (The Directive) [12] aims to harmonise the national laws with somewhat mutually incompatible dual aim of protecting the fundamental right to privacy regarding data processing and free flow of data among member states. The Article 2(h) of the Directive defines ‘the data subject’s consent’ as “any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed” [13]. The Article 7 of the Directive lists the legal grounds which make data processing legitimate, the unambiguous consent [14] of the data subject being one of them. However it does not define how the unambiguity and the consent would be validated as both are affected by cognitive factors attributable to data subject’s behaviour, further becoming more complex in the online environment.

The sensitive data can only be processed with the “explicit consent” of the data subject [15] who can always withdraw the consent, in which case the data processing must stop [16]. The member states can decide not to process sensitive data based on consent.[17] The data subject is not allowed to consent to waive the other data protections of the Directive.[18] While the consent to be legally valid, it has to be freely given, specific, informed and unambiguous, mere silence or inactivity does not signify consent.[19],[20]

The E-Privacy Directive provide privacy of electronic communications. The validity of consent under this would be interpreted with reference to the Directive [21], consent of all parties involved is required under Article 5(1), consent to be obtained prior to data processing under Articles 6(3), 9, 13 and 5(3) and consent cannot be withdrawn retrospectively under Articles 6 and 9. [22]

Thus, in the context of EU data privacy framework, the consent is an instrument in the hands of data subjects to control their personal data. However, the harmonisation of provisions of the Data Protection Directive is not uniform and smooth across the member states.

The Consent under General Data Protection Regulation (GDPR) [23]

The Table 1 is a highly condensed mention of the improved provisions relating to ‘consent’ in GDPR [24].

S. N. Article[25] Remarks
1. 4(11) ‘Consent’ means freely given, specific, informed and unambiguous indication of the data subject’s wishes by a statement or a clear affirmative action, signifying agreement.
2. 6(1)(a) ‘Consent’ to be lawful only when consent is for one or more specific purposes;
3. 6(4) When processing “for a purpose other than that for which the personal data have been collected is not based on the data subject’s consent,” the controller should ascertain compatibility between intended and proposed purpose of data processing by accounting the link, context, nature, possible consequences and appropriate safeguards between the two.
4. 7 1. Data Controller to demonstrate that ‘consent’ was given.
2. The ‘consent’ which is part of a written declaration which also concerns other matters, the request for consent shall be presented as clearly distinguishable from the other matters, in an ‘intelligible and easily accessible form, using clear and plain language’. ‘Any part of such a declaration infringing this Regulation shall not be binding.’
3. The ‘consent’ can be withdrawn any time but would not affect the data processing retrospectively. The withdrawal of ‘consent’ to be as easy as giving it.
4. If ‘consent’ to processing of personal data is conditional to performance of contract, it would not be considered ‘given freely’.
5. 8 1. The personal data processing of child of 16 years of age to be unlawful in absence of consent of person having parental responsibility of such child.
2. The data controller to make reasonable effort to verify that lawful consent was given in case of child below 16 years.
6. 9 Special categories of personal data defined and its processing prohibited except on listed grounds, the ‘explicit consent’ being one of them and in accordance with applicable law.
7. 13(2)(c) Duty of the controller to provide information regarding the existence of the right to withdraw the ‘consent’ at any time, without affecting the lawfulness of processing retrospectively.


The role of consent in legitimising the processing of personal data has been the consistent hallmark of the EU data protection framework. The framework and ‘models of consent’ [26] have evolved over time, strengthening the legitimising role of consent thus giving informational self-determination in EU approach to privacy. Many scholars have argued that in practice the consent correlates poorly with autonomy of data subject [27], which is a prerequisite and consequence of ‘consent’ [28]. The cognitive and psychological limitations coupled with demographic, cultural and racial profile of data subjects affects and influence the complex process of giving or withholding the consent. The GDPR being a Regulation would act as the single EU law with uniformity in application across member states. However, the entire process of legitimising consent has become very complex and, with passage of time, there is a real danger that it becomes irrelevant in future. The advent of internet of things, virtual reality and augmented reality would make this concept less practicable to apply to big data.


The consent plays an important role in legitimising the processing of personal data and EU has place high stakes on this concept at the cost of other legitimising factors like contract, which probably would be a more attractive proposition for market forces. There is a real possibility that by the time GDPR is adopted by member states, the enforcement of the violations of the provisions related to the consent becomes impossible and redundant in view of rapidly evolving information society services.


[1] EU Agency for Fundamental Rights (FRA), Data Protection in the European Union: the role of National Data Protection Authorities (Strengthening the fundamental rights architecture in the EU II), 2010) P. 14
[2] R Leenes and BJ Koops, Constitutional Rights and New Technologies. A Comparative Study Covering Belgium, Canada, France, Germany, the Netherlands, Sweden, and the United States (IT & Law Series), The Hague: TMC Asser Press 2007)
[3] Article 8
[4] Sionaidh Douglas-Scott, ‘The European Union and human rights after the Treaty of Lisbon’ (2011) 11 Human rights law review 645
[5] Klara Kanska, ‘Towards administrative human rights in the EU. Impact of the charter of fundamental rights’ (2004)
[6] R Alonso Garcia, ‘The general provisions of the charter of fundamental rights of the European Union’ (2002) 8 European Law Journal 492
[7] Article 6(1)
[8] Promasicae v Telefonica C-275/06 p 70
[9] Michal Bobek, ‘Joined Cases C-92 & 93/09, Volker und Markus Schecke GbR and Hartmut Eifert, Judgment of the Court of Justice (Grand Chamber) of 9 November 2010’ (2011) 48 Common Market Law Review 2005
[10] Paul De Hert and Serge Gutwirth, ‘Data protection in the case law of Strasbourg and Luxemburg: Constitutionalisation in action’, Reinventing data protection? (Reinventing data protection?, Springer 2009)
[11] Paul De Hert and Vagelis Papakonstantinou, ‘The proposed data protection Regulation replacing Directive 95/46/EC: A sound system for the protection of individuals’ (2012) 28 Computer Law & Security Review 130
[12] Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data Official Journal L 281 , 23/11/1995 P. 0031 – 0050 (Accessed at: on 14 November 2016) (1995)
[13] Ibid Art. 2(h)
[14] Ibid Art. 7(a)
[15] Ibid Art. 8
[16] W Kotschy, ‘Directive 95/46/EC—Data protection directive’ (2010) Concise European IT law Kluwer Law International, Alphen aan den Rijn
[17] Directive 95/46/EC n.12
[18] Paul De Hert and Serge Gutwirth, ‘Privacy, data protection and law enforcement. Opacity of the individual and transparency of power’ (2006) Privacy and the criminal law 61
[19] , ARTICLE 29 DATA PROTECTION WORKING PARTY Opinion 15/2011 on the definition of consent (ARTICLE 29 DATA PROTECTION WORKING PARTY 2011)
[20] Volker und Markus Schecke [2010] EUECJ C-93/09 (Court of Justice of the European Communities (including Court of First Instance Decisions))
[21] Directive 95/46/EC Arts. 2(g), 7(a) and Recital 17.
[22] , ARTICLE 29 DATA PROTECTION WORKING PARTY Opinion 15/2011 on the definition of consent
[23] , Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance) OJ L 119, 4.5.2016, p. 1–88 (2016)
[24] Ibid
[25] Ibid
[26] Eoin Carolan, ‘The continuing problems with online consent under the EU’s emerging data protection principles’ (2016) 32 Computer Law & Security Review 462
[27] Ibid
[28] , ARTICLE 29 DATA PROTECTION WORKING PARTY Opinion 15/2011 on the definition of consent

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Old Wine With a New Label : Rights of Data Subjects under GDPR

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International Journal of Advanced Research in Computer Science, ISSN No. 0976-5697, Volume 8, No. 7, July – August 2017

Sandeep Mittal
Cyber Security & Privacy Researcher
Former Director, LNJN NICFS (MHA)
New Delhi, India


Abstract: Recent reforms in data privacy protection framework in European Union have lead to enactment of General Data Protection Regulation (GDPR). However, it remains debatable if GDPR would lead to significant improvement in the protection of privacy rights of individuals, which is always considered the fundamental right. The advent of technology and movement of data across geographical barriers and outsourcing of data processing jobs to countries outside the EU necessitated enactments of GDPR. An analysis is done to demonstrate that though some of the provision of GDPR remain generically remain similar to the Data Protection Directive, GDPR has incorporated some new provisions by choosing the ‘regulation’ as an instrument of law for better harmonisation, expensing the ‘right to be forgotten, legitimisation the role of consent, providing data protection by design and default, increasing accountability of data controllers and expanding the scope of provision of the directive to extra territorial jurisdiction would be remain to be seen whether GDPR is an old wine with the new label or something else in a wine bottle.

Keywords: Rights of Data; Data Protection Regulation; Accessing of Personal data; Internet of Things; Control of Users over Their Personal Data; Data Protection Framework; General Data Protection Regulation


With about 46 per cent of the world’s population having access to it, the Internet has emerged as most popular medium of free expression, and as tool for conducting free trade and the use of smart devices. This propensity to use the Internet for various applications has thus resulted in the generation of a large volume of personal data online including (but not limited to) the name, address, mobile number, date of birth, email address, geographical location, health record of the user, among other things. This data has a high potential of secondary use which necessitates the protection of privacy and confidentiality of this personal data both at residence and in motion across the borders.[1] [2] [3] European Union Directive 95/46/EC (The Directive) [4] remained the basic instrument for protection of data privacy for over 20 years in European Union (EU) recognizing privacy as a fundamental human right.[5] However, the practical implementation of the Directive across the EU states and the seminal decisions of Court of Justice of European Union (CJEU) raised several issues regarding an understanding and need for individual rights to protection on the Internet in EU.[6] This, in turn, triggered the process of reform in the Data Privacy Protection Framework, leading to enactment of the General Data Protection Regulation (GDPR)[7], which is slated to usher in reforms and changes in the EU Data Protection Framework. The scope of this essay is to discuss whether the GDPR signifies any improvement over the current directive in terms of the Right of Individual Data Subjects.


The Directive had almost become antiquated in view of the evolution of new technology such as Internet of Things (IoT), and Cloud, among others, giving rise to a new type of risk that was unknown when the Data Protection Directive was enacted. With the advent of advanced technology and the outsourcing of online services across borders, the adoption of divergent approaches to privacy prevalent both within and outside Europe have given rise to the concern for protection of data privacy in the EU.[8] [9] [10] [11] [12] However, the more immediate trigger for reformation in this policy was the taking of seminal decisions by the CJEU, which led to a lot of important changes in the understanding of the Data Protection Regulation legal framework. In Google Spain,[13] [14] [15] it was ruled that Google would be classified as the controller, as the search, indexing, and storage of information implied the processing of personal data as defined by the Directive. Therefore, search engines are obliged to remove the links to web pages from their results if so requested by the data subject. This gave rise to serious consequences for the search engine and its credibility, as also for the role of intermediaries, as this judgement empowered individuals to ascertain their ‘right to be forgotten’, affecting the free flow of information on the Internet in the process. Another case in which the decision changed the legal situation relating to the data protection law was the Schrems Judgement,[16] wherein the CJEU ruled that a third country ensuring an adequate level of protection cannot eliminate or reduce the power of national supervisory authority to assess the adequacy of data protection under the Directive. Further, the court declared that the Safe Harbor Agreement [17] with the USA was invalid. [2] (Burri and Schär 2016)[18] This judgement highlighted the various challenges that the existing data protection framework was facing in an overwhelming environment of use of advanced technology over two decades since the enactment of the Directive. The following section presents a discussion on the selected key provisions of the GDPR, which could prove to be in terms of their implications for the protection of the rights of individual data subjects.


The legal instruments that are used by the EU are in the form of Communication, Directive and Regulation. A directive has to be transposed into the national law by enacting an amendment or new laws that would be applicable within the national territory inhabited by the members whereas a regulation can be directly applied as a law. Therefore, the problem of harmonisation of the Directive across the EU member-states has been overcome through the choice of regulation during enactment of the GDPR [19]. Albeit the Commission has promised a “strong, clear and uniform legislative framework at [the] EU level” that will “do away with the patchwork of the legal regime across the 27 member-states and remove the barrier to market entry” [20]. However, the coordination of the member countries, their respective data protection authorities, national laws and courts would not be an easy task to achieve by 2018, when the Regulation comes into force.


The 1995 Directive specifies that “personal data shall mean any data relating to identified or identifiable nature person data subjects”.[21] While the identified individual is more or less clear, identifiability is not explained in the Directive. This has been explained in the GDPR and expanded in Article 29 of the Working Party Document [22] and Article 41 of the GDPR has adopted the same approach. However, the Recital 23 has introduced a proportionality test (positing that identifiability is related to “mean reasonably and likely to be used” taking account of “all objective factors such as technology, effort and cost”) in order to assess each time the nature of the data that may help protect the identifiable individual. If the proportionality test is not passed, then such data will not be considered, as the personal data provision and the GDPR does not apply to anonymous data.[23] The regulation has also introduced a new class of data, that is, “pseudonymous data”, which alludes to the processing of personal data in such a way that data can no longer be attributed to a specific data subject without the use of additional information, as long as such additional information is kept separately and is subject to technology and organisational measures for ensuring its non-attribution to an identified and identifiable person”.[24] However, the questions that arise are: What is the relationship between pseudonymous data and personal data? Is pseudonymous data a sub-category of personal data, and does it fall under the scope of the GDPR? According to the Recital 23, “data which has undergone pseudonymization, which could be attributed to [a] natural person by use of additional information should be considered as information on an identifiable natural person”. [25] If this is so, then the proportionality test would have to be applicable to the information pertaining to an identifiable person and only then should it be considered as personal data for the purpose of data protection legislation. The GDPR would also not apply to information concerning a deceased person.[26] As regards the issue of sensitive data, the regulation has adopted and applied the same approach as the Directive. It propounds that sensitive data are data which reveal “racial or ethnical origin, political opinion, religious, philosophical believes, trade union membership, processing of genetic data, biometric data in order to uniquely identify a person or data concerning health or sex life or sexual orientation”.[27] Thus, genetic data, biometric data, and sexual orientation data are new categories included under sensitive data. The processing of data relating to criminal conviction and offences or relating to security measures is allowed only under the control of an official authority or after adequate safeguards have been provided under the law.[28] However, Articles 4 and 9 of the GDPR, while remaining similar to the Directive at the generic level, provide some improvement in terms of privacy protection.


The “right to be forgotten” is currently one of the most hotly debated issue because of the Google Spain judgement and has been incorporated in Article 17 of the GDPR. A data subject can now get his personal data erased and put an end to further processing if the data in question is no longer necessary for the purpose for which it was collected irrespective of whether a data subject as an individual is the subject or whether his personal data is being processed.[29] However, this right is not absolute.[30] The right to be forgotten includes an obligation on the part of the data controller who has made the personal data public to inform other controllers who would process such personal data to erase any links, copies, or replications pointing to that personal data. Also, while doing so, the data controller concerned would have to take reasonable steps in accordance with the technology and resources available to him for use including technology measures.[31] However, Article 17 may lead to certain problems, some of which are delineated below:

i) The controller may not even know or be able to contact all the third parties.

ii) The third party may have different legal grounds for not agreeing to erasure of the request of the original controller.

iii) The issue of who the third party controller would be in the case of ‘Internet-bounces’ is ambiguous, as the modern Internet has blurred the distinction between the controller and the data subject, leading to a grey area in the data protection law.

However, it is claimed that actually the right to be forgotten would become an absolute right only when the data is removed by every controller but ironically, modern technology developments do not allow data subjects to know the identity of the controller(s) processing their data. [32] Therefore, theoretically, it may be claimed as a ‘right to be forgotten’, but with practical implementation in the future, it may become ‘a right forgotten’.


A host of other rights are included in the GDPR, including the right to transfer information,[33] the right of access to personal data,[34] the right to data portability,[35] and the right to object.[36] A data subject cannot be subjected to a decision based on automatic processing including profiling, which has legal or other considerable effects on the data subject. However, this right is limited if the processing is necessary for contractual obligation between the data subject and the data controller or is authorised by law as applicable in the EU, or in any of its member-states of which the data controller is a subject or if it is based on the data subject’s explicit concern.[37] The right to data portability is a considerable and significant protection for users, who now have the potential right to receive their personal data in a structured, commonly used and machine-readable format. This can be transferred to another controller without hindrance from the controller who is controlling the original personal data.[38] However, it has been argued by a few that data portability may hamper innovation by making it freely available, and thereby hurting the self-correcting power of the market.[39]

The GDPR, however, limits the access right of the subject in a situation wherein the data controller is not in a position to identify the subject. The right to confirmation and the right to access to data represent greater risk of harm if the information is disclosed to someone who is not a data subject.[40] If the person requesting for this data provides additional information that facilitates his identification for restoring the right to full access to the subject, the right itself becomes a risk.[41] For example, if the data subject is asked to prove his identity by providing a copy of his passport, this proves that the person requesting for the data could be someone with the same name as data subject, but does not prove that he himself is the data subject.[42] Therefore, this right entails an undue risk to the privacy of the individual concerned and is a necessary limitation of the data protection right.


Article 2H of the Directive defines the data subject’s consent as “any freely given specific information and indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed”.[43] Article 7 (2) of the Directive also lists the legal grounds that make data processing legitimate, with the unambiguous consent of the data subject being one of them.[44] However, the Directive does not define how the unambiguity and the consent would be validated as both are affected by cognitive factors attributable to the data subject’s behaviour, becoming even more complex in the online environment. In the context of the EU’s data privacy framework, the consent is an important instrument in the hands of the data subjects for controlling their personal data. The GDPR has placed a responsibility on the data controller to demonstrate that the consent was given by the data subject.[45] It stipulates that the consent to process personal data is conditional to the performance of a contract, and that it would not be considered ‘given freely’.[46] The GDPR also provides that the personal data processing of a child of or below 15 years of age is unlawful in the absence of the consent of the person having the parental responsibility of such a child.[47] The data controller also has the responsibility of making a reasonable effort to verify that such a consent is lawful.[48]

However, it remains to be seen if in practice, the consent of the data subject correlates autonomy [49] with its legitimacy. Several cognitive and psychological imitations, coupled with the demographic, cultural and racial profile of the data subject, affect and influence the complex process of giving or withholding of consent. The data subject has the right to withdraw his consent at any time, as the regulation explains that “it shall be as easy to withdraw as [to] give any consent”[50].


It has been widely claimed that the right to explanation of a decision made by an automatic or artificial intelligence algorithm system will be legally mandated by the [3](Wachter, Mittelstadt, and Floridi 2016)GDPR,[51] which is viewed as a mechanism for ensuring better accountability and transparency.

The right to explanation can possibly to derived from:[52]

i) Safeguard against automated decision making;[53]
ii) Notification duties; [54] and
iii) Right to access [55]

Scholars have argued that Article 22 of the GDPR has the potential of dual interpretation as a ‘prohibition’ or the ‘right to object’, and would need to be clarified before the GDPR is implemented by 2018. Without any such clarification, prior to enforcement, Article 23 will allow for a conflicting interpretation of the right of the data subject to control any automated decision-making across the EU member-states. This conflict would become inevitable especially because different interpretations protect very different interests. Article 22, while being interpreted as ensuring prohibition, offers greatest protection of the data subject. On the other hand, if interpreted as a right, Article 22 creates a loophole that allows the data controller to prevent the person requesting for information access to Article 22 to requester under the automated decision-making rule unless an objection against that is raised by the data subject [56]. Thus, the GDPR does not guarantee transparent and accurate automated decision-making and there is no legally binding right to an explanation in this context.


Article 25 of the GDPR provides new obligations under the title of “Data Protection by Design[57] and by Default”.[58] This obligation requires the data controller to build in data protection functionality in his system. It has been suggested that the issue of ‘Data Protection by Design and by Default” may become a real game-changer if implemented by the data controller, processor, producer, and the supervising authority. However, it would not be an easy task for all stakeholders to benefit from this right as it would require in-depth knowledge and resources, and access to state-of-the-art technology, unless researchers, practitioners and supervisory authorities collaborate with each for a meaningful implementation of the said right.[59]


The GDPR has also introduced the novel concept of Data Protection Impact Assessment (DPIA).[60] When the data processing based on the use of new technology is likely to result in a high risk to the right and freedom of a natural person, the data controller is obligated to carry out an impact assessment.[61] The Regulation prescribes the minimum elements that should be considered for the DPIA, that is, a description of the processing operation, an assessment of the necessity and proportionality of processing with reference to the purpose of assessment of risk to the right of the data subjects, the remedial measures taken, and freedoms and safeguards.[62] The data controller must consult the supervising authority before processing the data wherever the DPIA points to a high risk to the processing of data. The supervisory authority has been given the power to impose limitations including banning the processing of data.[63] The data protection [4](“Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance) OJ L 119, 4.5.2016, p. 1–88 ” 2016)authority can also impose a fine up to a maximum of 2 crore Euros, or in the case of business, 4 per cent of the total business turnover, whichever is higher.[64]


Article 31 of the GDPR mentions that the scope of territorial application of the Directive covers the process of accessing of personal data in the context of activities leading to the establishment of a controller or a processor in the EU, regardless of whether the processing of data has taken place or not. Thus, independent obligations have been implemented on the person responsible for processing the data. The GDPR may also apply to a controller or processor of data who is not established in the EU under certain conditions having wide ramifications.[65] This would potentially mean that many companies incorporated outside the EU but targeting the EU market would be brought to book.[66]


The issue of protection of the privacy of an individual is always considered as a fundamental right in the EU, and is the hallmark of the data protection framework. The advent of technology and movement of data to a cloud across geographical barriers, and outsourcing of data processing jobs to countries outside the EU have made the data protection directive of 1995 a little redundant in terms of its ability to overcome practical difficulties and judicial enactments. The GDPR has, therefore, been enacted to provide better privacy protection to individuals. It has also been demonstrated that though the basic principle and guidelines of the Data Protection Directive and GDPR are generically similar, the inclusion of some new provisions in the GDPR regulations provides for a better protection of the privacy rights of individual data subjects. Some of the provisions of the new Directive that signify better protection of the right of individual subjects include the choice of ‘regulation’ as an instrument of law for better harmonisation, expansion of scope of the ‘right to be forgotten’ in the case of personal data, improved control of users over their personal data, better legitimisation of the role of consent in data processing, data protection by design and default, increased accountability of data controllers for their actions, and the extra-territorial scope of application of the provisiosn of the Directive. However, some provisions like Article 22 of GDPR need to be clarified before GDPR is implemented the next year in order to avoid their conflicting dual interpretation. It remains to be seen how the GDPR is actually implemented and what its impact would be when it come into force in 2018.

[1] M. M. Group. (2015, 24.11.2015). World Internet Users Statistics and 2015 World Population Stats. Available:
[2] S. R. Salbu, “European Union Data Privacy Directive and International Relations, The,” Vand. J. Transnat’l L., vol. 35, p. 655, 2002.
[3] J. Kang, “Information privacy in cyberspace transactions,” Stanford Law Review, pp. 1193-1294, 1998.
[4] Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data Official Journal L 281 , 23/11/1995 P. 0031 – 0050 (Accessed at: on 14 November 2016), 1995.
[5] ibid.
[6] M. Burri and R. Schär, “The Reform of the EU Data Protection Framework,” Journal of Information, vol. 6, 2016.
[7] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance) OJ L 119, 4.5.2016, p. 1–88 2016.
[8] D. R. Nijhawan, “Emperor Has No Clothes: A Critique of Applying the European Union Approach to Privacy Regulation in the United States, The,” Vand. L. Rev., vol. 56, p. 939, 2003.
[9] J. R. Reidenberg, “E-commerce and trans-atlantic privacy,” Hous. L. Rev., vol. 38, p. 717, 2001.
[10] D. Zwick and N. Dholakia, “Contrasting European and American approaches to privacy in electronic markets: property right versus civil right,” Electronic Markets, vol. 11, pp. 116-120, 2001.
[11] M. Boban, “DIGITAL SINGLE MARKET AND EU DATA PROTECTION REFORM WITH REGARD TO THE PROCESSING OF PERSONAL DATA AS THE CHALLENGE OF THE MODERN WORLD,” in Economic and Social Development (Book of Proceedings), 16th International Scientific Conference on Economic and Social, 2016, p. 191.
[12] G. Shaffer, “Globalization and social protection: the impact of EU and international rules in the ratcheting up of US data privacy standards,” Yale Journal of International Law, vol. 25, pp. 1-88, 2000.
[13] S. Singleton, “Balancing a Right to be Forgotten with a Right to Freedom of Expression in the Wake of Google Spain v. AEPD,” Ga. J. Int’l & Comp. L., vol. 44, pp. 165-195, 2015.
[14] A. Bunn, “The curious case of the right to be forgotten,” Computer Law & Security Review, vol. 31, pp. 336-350, 6// 2015.
[15] C. Rees and D. Heywood, “The ?right to be forgotten? or the ?principle that has been remembered?,” ibid.vol. 30, pp. 574-578, 10// 2014.
[16] “Maximillian Schrems v Data Protection Commissioner, C-362/14, Court of Justice of the European Union,” ed: Court of Justice of the European Union 2015.
[17] M. A. Weiss and K. Archick, “US-EU Data Privacy: From Safe Harbor to Privacy Shield,” Congressional Research Service, 2016.
[18] M. Burri and R. Schär, “The Reform of the EU Data Protection Framework,” Journal of Information, vol. 6, 2016.
[19] P. de Hert and V. Papakonstantinou, “The new General Data Protection Regulation: Still a sound system for the protection of individuals?,” Computer Law & Security Review, vol. 32, pp. 179-194, 2016.
[20] V. Reding, “The European data protection framework for the twenty-first century,” International Data Privacy Law, p. ips015, 2012.
[21] Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data Official Journal L 281 , 23/11/1995 P. 0031 – 0050 (Accessed at: on 14 November 2016), 1995.
[22] Article 29 Working Party Opinion 4/2007
[23] Regulation (EU) 2016/679, 2016. Recital 23
[24] ibid. Article 43 (b)
[25] ibid. Article 23
[26] ibid. Article 23a
[27]ibid. Article 9
[28] ibid. Article 23
[29]ibid. Article 17 (1)
[30] ibid. Article 17 (3) Recital 65
[31] ibid. Article 17 (2) Recital 66 & 67
[32] A. Mantelero, “The EU Proposal for a General Data Protection Regulation and the roots of the ?right to be forgotten?,” Computer Law & Security Review, vol. 29, pp. 229-235, 6// 2013.
[33]Regulation (EU) 2016/679, 2016. Article 12
[34]ibid. Article 13, 14, 15, 19
[35] ibid. Article 20
[36]ibid. Article 21, 22
[37]ibid. Article 22 (2)
[38] ibid. Article 21
[39] M. Burri and R. Schär, “The Reform of the EU Data Protection Framework,” Journal of Information, vol. 6, 2016.
[40] Regulation (EU) 2016/679, 2016.
[41] A. Cormack, “Is the Subject Access Right Now Too Great a Threat to Privacy,” Eur. Data Prot. L. Rev., vol. 2, p. 15, 2016.
[42] ibid.
[43] Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data Official Journal L 281 , 23/11/1995 P. 0031 – 0050 (Accessed at: on 14 November 2016), 1995.Article 2H
[44] ibid. Article 7 (a)
[45] Regulation (EU) 2016/679, 2016. Article 7 (1)
[46] ibid. Article 4 (4)
[47] ibid. Article 8 (1)
[48] ibid. Article 8 (2)
[49] E. Carolan, “The continuing problems with online consent under the EU’s emerging data protection principles,” Computer Law & Security Review, vol. 32, pp. 462-473, 2016.
[50] Regulation (EU) 2016/679, 2016. Article 7(3)
[51] S. Wachter, B. Mittelstadt, and L. Floridi, “Why a right to explanation of automated decision-making does not exist in the General Data Protection Regulation,” 2016.
[52] ibid.
[53] Regulation (EU) 2016/679, 2016. Article 20 (3) read with Recital 71
[54] ibid. Article 13, 14 read with Recital 60, 61, 62
[55] ibid. Article 15 read with Recital 63
[56] S. Wachter, B. Mittelstadt, and L. Floridi, “Why a right to explanation of automated decision-making does not exist in the General Data Protection Regulation,” 2016.
[57] Regulation (EU) 2016/679, 2016. Article 25(1)
[58] ibid. Article 25(2)
[59] E. Hanson, “The History of Digital Desire, vol. 1: An introduction,” South Atlantic Quarterly, vol. 110, pp. 583-599, 2011.
[60] Regulation (EU) 2016/679, 2016. Article 33
[61] ibid. Article 35
[62] ibid. Article 35(7)
[63] ibid. Article 58
[64] ibid. Article 83, 85, 86
[65] ibid. Article 3(2)
[66] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance) OJ L 119, 4.5.2016, p. 1–88 2016. Recital 23

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A Review of International Legal Framework to Combat Cybercrime

Posted on Updated on

International Journal of Advanced Research in Computer Science, ISSN No. 0976-5697, Volume 8, No. 5, May-June 2017

Sandeep Mittal, IPS
LNJN National Institute of Criminology & Forensic Science
Ministry of Home Affairs, New Delhi, India
Prof. Priyanka Sharma
Professor & Head
Information Technology & Telecommunication,
Raksha Shakti University, Ahmedabad, India


Abstract: Cyberspace is under perceived and real threat from various state and non-state actors. This scenario is further complicated by distinct characteristic of cyberspace, manifested in its anonymity in space and time, geographical indeterminacy and non-attribution of acts to a tangible source. The transnational dimension of cybercrime brings forth the issue of sovereignty, jurisdiction, trans-national investigation and extra territorial evidence necessitates international cooperation. This requires and international convention on cybercrime which is missing till date. Council of Europe Convention of Cybercrime is the lone instrument available. Though it is a regional instrument, non-members state like US, Australia, Canada, Israel, Japan etc. have also signed and ratified and remains the most important and acceptable international instruments in global fight to combat cybercrime. In this paper, authors have argued that Council of Europe Convention on Cybercrime should be the baseline for framing an International Convention on Cybercrime.

Keywords: Cybercrime, International Convention on Cybercrime, Cyber Law, Cyber Criminology, International Cooperation on Cybercrime, Internet Governance, Transnational Crimes.


Information Societies have high dependency on the availability of information technology which is proportional to security of cyber space [1] [2]. The availability of information technology is under continuous real and perceived threat from various state and non-state actors [3]. The cyber-attack on availability of information technology sits on a thin line to be classified as cybercrime or cyber war having devastating effects in the physical world. The discovery of ‘cyber-attack vectors’ like Stuxnet, Duqu, Flame, Careto, Heart Bleed etc. in the recent past only demonstrates the vulnerability of the confidentiality, integrity and availability of information technology resources [4] [5]. The scenario is further complicated by the very nature of cyber space manifested in anonymity in space and time, rapidity of actions resulting in asymmetric results disproportionate to the resources deployed, non-attribution of actions and absence of international borders [6]. By virtue of these features, ‘the transnational dimension of cybercrime offence arises where an element or substantial effect of the offence or where part of the modus operandi of the offence is in another territory’, bringing forth the issues of ‘sovereignty, jurisdiction, transnational investigations and extraterritorial evidence’; thus necessitating international cooperation [7]. In this essay, international efforts and their efficacy in combating cybercrimes would be analysed.


Although several bilateral and multilateral efforts have been attempted to combat cybercrime, the European Union remains at the forefront in creating a framework on cybercrime [8] [9] [10] [11]. Going beyond the European Union by inviting even non-member States, incorporating substantial criminal law provisions and procedural instruments, the Council of Europe Convention on Cybercrime (the Convention) [12] puts forth ‘instruments to improve international cooperation’ [13]. The Convention makes clear its belief ‘that an effective fight against cybercrime requires increased, rapid and well-functioning international cooperation in criminal matters’ [14]. As on December 2016, 52 States have ratified the Convention and 4 States have signed but not ratified. As of July 2016, the non-member States of Council of Europe that have ratified the treaty are Australia, Canada, Dominican Republic, Israel, Japan, Mauritius, Panama, Sri Lanka and US. The Convention is today the most important and acceptable international instrument in global fight to combat cybercrime [15] [16] [17] thereby limiting the scope of discussion to the Convention for the purpose of this essay.

The Convention seeks to harmonise the substantive criminal law by defining ‘offences against the confidentiality, integrity and availability of computer data and systems’ [18], ‘computer related offences’ [19], ‘content related offences’ [20], ‘offences related to infringement of copyright and related rights’[21] and ‘ancillary liability and sanctions’ [22]. The convention also seek to harmonise the procedural law by providing scope, conditions and safeguards to procedures [23], expedited preservation of stored computer data, traffic data and partial disclosure of traffic data [24]; the search and seizure of stored computer data [25] and collection of real time data [26]. The jurisdiction over the offences established by the Convention is also sought to be harmonized [27]. However the strength of the Convention is the details in which general and specific principles relating to international co-operation including extradition and mutual assistance are enumerated [28]. To sum up, the Convention intends to provide ‘a swift and efficient system of international cooperation, which duly takes into account the specific requirements of fight against cybercrime’ [29]. However, a few scholars [30] have raised doubts about the effectiveness of the Convention, in improving the international co-operation thus enabling law enforcement agencies to fight cybercrime, and thereby terming it merely a symbolic instrument. The Convention ‘is an important step in right direction’ [31] and remains as ‘the most significant treaty to address cybercrimes’ [32].


A number of contentious legal and procedural issues generally arise while investigating cybercrimes involving transnational dimension, thus acting as impediment to the very process of investigation [33] [34] [35]. The cyber space has evolved exponentially since the Convention was drafted. The deployment of ‘military-grade precision-vectors’ and the advanced persistent threats (APTs) to attack infrastructure in virtual and real world are the order of the day. The internet of things has beginning to become botnet of things. The Nation-states also have realised that the cyber-space has almost become the fifth domain of war.[36] In view of this escalated scenario, while the formal channels like extradition and mutual assistance are delayed to the extent of killing the investigation, the informal requests between law enforcement agencies (LEAs) are viewed with suspicion.

The Convention only seeks to harmonize the domestic law but many nation-states have no cybercrime legislation. This combined with heterogeneity of skills, capacity, technology access and sub-culture of LEAs, cybercriminals and victims forms a ‘vicious circle of cybercrime’ [37]. The role of consent, having cognitive and cultural limitations, for accessing stored computer data in accordance with Article 32 of the Convention, is not well defined and therefore open to the interpretation of courts making this provision rather an instrument of international non-cooperation. Moreover, EU Primary Law viz., Charter of Fundamental Rights (CFR) of the European Union of 2000 [38], Treaty on European Union [39] and the jurisprudence of the CJEU [40], now recognise data protection as a fundamental right. The shield of human rights is very effectively used to prevent international co-operation. The domestic laws of some nation-states, e.g., Section 230, CDA [41] in US, have become judicial oak in hampering international co-operation in cybercrime investigations as it provides blanket immunity to search engines like Google.

The very nature of the internet-governance structure, tilted heavily toward private players, leaves very little in the hands of the States. The efforts for strengthening international co-operation to combat cybercrime, including the Convention, have miserably failed to tap this private element of the governance mainly due to conflict of private and public interests.


As cyber space is rapidly evolving with the advent of new technologies, the cybercrime is assuming new dimensions in space and time impeding its investigation in ways never before contemplated. The law and the capacity building of LEAs are not able to keep pace with these new developments. While the cyber space has no borders for the cybercriminals, the law enforcement agencies would have to respect the sovereignty of other nations. The national disparities in ‘law’, ‘legal systems’ and ‘capacity’ to combat cybercrimes are so wide that the international co-operation remains the only hope to combat crime. The Convention on Cybercrime is, though symbolic, a great effort to identify issues and provide solution to the existing legal and procedural gaps in fighting cybercrime. As the laws were and would always remain inadequate for enforcement, it would only be a concerted effort to achieve international co-operation to make cybercrime a very high cost and high risk proposition. The UN has recently woken up to the situation [42] and would do well to take the Convention on Cybercrime as the baseline to frame an International Convention on Cybercrime.


[1] M. Gercke, “Europe’s legal approaches to cybercrime,” in ERA forum, 2009, pp. 409-420.
[2] M. Gercke, “Understanding cybercrime: a guide for developing countries,” International Telecommunication Union (Draft), vol. 89, p. 93, 2011.
[3] D. L. Speer, “Redefining borders: The challenges of cybercrime,” Crime, law and social change, vol. 34, pp. 259-273, 2000.
[4] S. Mittal, “Perspectives in Cyber Security, the future of cyber malware,” The Indian Journal of Criminology, vol. 41, p. 18, 2013.
[5] S. Mittal, “The Issues in Cyber- Defense and Cyber Forensics of the SCADA Systems,” Indian Police Journal, vol. 62, pp. 29- 41, 2015.
[6] S. Mittal, “A Strategic Road-map for Prevention of Drug Trafficking through Internet,” Indian Journal of Criminology and Criminalistics, vol. 33, pp. 86- 95, 2012.
[7] O.-e. I. E. G. o. Cybercrime, “Comprehensive Study on Cyber Crime,” UNODC2013.
[8] “COMMUNICATION FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN PARLIAMENT, THE ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Creating a Safer Information Society by Improving the Security of Information Infrastructures and Combating Computer-related Crime,” ed, 2001.
[9] “Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions: Creating a safer information society by improving the security of information infrastructures and combating computer-related crime [COM(2000) 890 final – not published in the Official Journal].”
[10] “Council Framework Decision 2005/222/JHA of 24 February 2005 on attacks against information systems,” vol. OJ L 69, 16.3.2005, p. 67–71, ed.
[11] Council of Europe, Convention on Cybercrime, 23 November 2001, available at: [accessed 26 February 2017].
[12] ibid.
[13] ibid.. Articles 23-35
[14] ibid. Preamble
[15] “Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions: Creating a safer information society by improving the security of information infrastructures and combating computer-related crime [COM(2000) 890 final – not published in the Official Journal].”
[16] O.-e. I. E. G. o. Cybercrime, “Comprehensive Study on Cyber Crime,” UNODC2013.
[17] “United Nations, UN General Assembly Resolution 55/63: Combating the Criminal Misuse of Information Technologies (Jan. 22, 2001),” ed.
[18] Council of Europe, Convention on Cybercrime, 23 November 2001, available at: [accessed 26 February 2017].. Articles 2 – 6.
[19] ibid.. Articles 7, 8.

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Risks and Opportunities provided by the Cyber- Domain and Policy- Needs to address the Cyber- Defense

Posted on Updated on

International Research Journal On Police Science, ISSN 2454-597X Volume 2, Issue 1&2

Sandeep Mittal, I.P.S.,*


International Research Journal On Police Science. ISSN: 2454-597X, Issue 1&2, December 2016


The term ‘Cyber Domain’ has been used widely by various experts, sometimes interchangeably with ‘Cyber Space’, to imply – “the global domain within the information environment that encompasses the interdependent networks of information technology infrastructures, including the internet and telecommunication networks” (Camillo & Miranda, 2011). Today it has become “the fifth domain of warfare after land, sea, air and space and its a challenge to have a common definition of cyber Domain” but for the purpose of this essay the definition given above would suffice. Any entity, whether it is a Nation State or an Enterprise, who operates in cyber domain need to maintain confidentiality, integrity and availability of its deployed resources. The dynamics of cyber domain is complex and complicated in time and space. The humans, machines, things and their interaction is evolving continuously to pose risks and opportunities in the cyber domain. The risk to someone becomes opportunity for the other. In this essay, the ‘risks presented by’ and ‘opportunities available in’ the cyber Domain would be identified, discussed and analyzed to consider key strategic policy elements to defend the cyber domain.

Risks and Opportunities in Cyber Domain

The ‘very low cost efforts’ giving asymmetric results coupled with anonymity in space and time makes the cyber domain attractive (Cyber Security Strategy of UK, 2009) for use by various actors for malicious objectives. This faceless and boundary less domain is highly dynamic and throwing surprises with rapidity and having the potential of causing damages (real and virtual) which are disproportionate to the resources deployed. Let us have a look at various realms in terms of risks associated with them.

  1. The information system platforms and the equipment supporting the cyber ecosystem is susceptible to conventional physical attacks. The electronic equipment can be subjected to destruction by generating High Energy Radio Frequencies and Electromagnetic Pulses.
  2. The services in the cyber- space may be disrupted by direct attack e.g. DoS, DDoS etc. This is the most common attack and has the potential to paralyze the lines of communication, bring down banking services and sabotage military operations. It has been deployed over the years not only by novice script kiddies but also sophisticated state sponsored agencies successfully. Botnets working round the clock have become a serious challenge.
  3. The sensitive data (in storage and on the move) may be accessed, stolen or manipulated to have the desired effect immediately or at a subsequent date. The technology and deployment methodology is evolving with time and simple malware tools have been replaced with complex, intelligent and well-crafted attacks generally known as Advanced Persistent Threats (APTs). The stealth, patience and dedicated consistency of APTs has the capability to bypass the best firewalls (including New Generation Firewalls) and Intrusion Detection and Prevention Systems to exploit the Zero- Day- Vulnerabilities (Fire Eye White Paper, 2014).

The risks  associated with various realms as discussed above may manifest themselves in various dimensions of the society like Civic Infrastructural Breakdown (e.g., failure of electric power grids, disruption of fuel pipelines, disruption of water supply chain etc.), Economy Disruption (e.g., disruption of banking services, business continuity and maintenance related costs), Social Behavioral Effects on Society (e.g., gambling, spamming, pornography, drugs supply, propagation of extremist ideology) and last but not the least hacking and intrusion into privacy, compromising the Nations Morale through  use  of social media leading  to civic unrest and hampering diplomatic relations (e.g. Wiki Leaks ) and thus finally setting the stage for Cyber Warfare. Eventually, the Cyber Domain becomes a ‘means’ of most serious ‘end’, that is, the Cyber Warfare (Cornish et al, 2009). The ‘research-tool of yester- years’ has evolved into a strong medium of mass communication. In the Chatham Report titled ‘Cyberspace and the National Security of the United Kingdom, 2009, the concept of Cyber Threat Domains is introduced.

Let us have a look at the challenges and opportunities in Cyber security in terms of four ‘Cyber- Threat- Domains” (Cornish et al, 2009).

  1. ‘State-sponsored Cyber-attacks: The complete dependence of a Nation’s economy and critical infrastructure presents an opportunity to the ‘Nation States’ to deploy cyber- tools to gain information-dominance in cyber-domain to transmit information and denial/ restriction of such information to enemy state, as also the collection of tactical information. Going further, crippling a nation by paralyzing its critical infrastructure through deployment of stealthy and well-crafted tools to exploit ‘Zero-day-vulnerability’ is a matter of hours, and not even days. The use of Cyber attacks in raising the temperatures of furnaces in nuclear power plants and increasing the flow-speed of liquids in fuel pipelines may be used as weapons of mass- destruction.
  2. The concepts of war-maneuvering have been compared with cyber-maneuver (Applegate 2012), where it is realized that blatantly hostile acts in cyber space are characterized by rapidity, anonymity and difficulty in attribution and are dispersed in space and time. Even the territory of enemy or one of his allies can be used to achieve desired asymmetric results.

  3. Cyber-Terrorism /Extremism –There is no other medium which is more powerful and anonymous than cyberspace, where asymmetric results can be achieved by deploying minimal resources with ease. The internet is an anarchic play ground or an ungoverned space, which can be exploited by extremists for communication and information sharing, designing strategies, conducting training for its members, procurement of resources, infiltrating State’s assets and forming alliances with organization having common objectives but different motivations. The use of social media by political extremists to propagate their ideology and take on the government machinery may spearhead insurgency by exploiting public sentiment.
  4. Serious and Organized Criminal Groups are exploiting the cyber space not only to maintain their criminal networks but also for money laundering, drug-trafficking, extortion, credit card frauds, industrial espionage etc. “In the cyber space, physical strength is insignificant […….] , strength is in  software , not in numbers of individuals“ (Brenner, 2002). It poses a great challenge to the Law Enforcement Agencies to tackle Cyber- criminality. The need of operational level coordination with international LEAs can not be under stated as the existing mechanisms of MLAT etc have not given desired results. The thrust LEAs is on acquisition of hardware and software and the training of human resources is lacking.
  5. Lower –level Individual Attacks: are acts of individuals and may give results disproportionate to the skills deployed. These attacks may not be technologically advanced but have the capabilities to create panic and day to day disruptions. Sometimes fools pose great questions. Free availability of a number of   hacking and penetration testing tools on internet assist the script kiddies to venture in the world of hacking.

Thus it is amply clear form the foregoing that the cyber domain presents unimaginable opportunities spread over space and time with rapidity, anonymity and almost no investments.

Policies to Address Cyber Defense

Any policy for cyber- defense has to be multipronged, tiered and dynamic. There are many approaches to decide upon the strategic policies. One is the systematic approach while the other is to keep the national security as the central theme and then weave other defenses around it. What should be the strategy for a secure Information Society?  For the purpose of this essay we may define it as    “the ability of a network or an information system to resist, at a given level of confidence, accidental events or malicious actions that compromise the availability authenticity, integrity and confidentiality of stored or transmitted data and the related services offered by or accessible via these networks and systems” (Commission of the European Communities, 2006). Though this is a network- system- centric definition, it is felt by author that, if this approach is taken care of, by the strategic policy, the other considerations would fall in line. The approach should not be like the example of the “elephant and the five blind men’ rather it should be an integrative approach to address various risks, issues and opportunities in the cyber domain.  We would try to build up the key elements of the strategy which a strategic policy should address to defend the cyber domain. “The integrated application of cyberspace capabilities and processes to synchronize in real- time, ability to detect, analyze and mitigate threats and vulnerabilities, and outmaneuver adversaries, in order to defend designated networks is part of cyber defense strategy and includes proactive network operations, defensive counter cyber operations and defensive countermeasures” ( U.S Department of Defense, 2010 ). As policy should be general and broad, it would be beyond the scope of this essay to discuss procedures, details of technologies and processes associated with them and mechanisms to deploy them.  We would be focusing rather on the key elements; a security policy should incorporate to achieve the objective of defending the cyber domain. It should incorporate the ground realities present in the scenario where policy would be applied. In the lighter vein, I am incorporating three cartoons, based on three real incidents in India, conceptualized by the author.

The author has perused the summaries of  the National Cyber Security Strategies of nineteen countries (Luijf, Besseling & Graaf, 2013) and based on them, tried to identify the key elements of the strategic policy to defend the cyber domain.

  1. Legislation/Legal Framework:

    The cyber domain has no boundary. The various stakeholders and players may be spread all round the globe irrespective of national jurisdictions. Hence, a law which is progressive and aligned with international conventions on cyber-crime and Laws of the other nation states would be a basic requirement to defend the cyber domain. Additionally, the judiciary needs to be sensitized on various aspects of cyber law for better appreciation while dealing with such cases.

  2. Mandating the Security Standards:

    Mandating the minimal security standards in information security is like preparing the ground before the seeds are sown. Security assurance measures for products ( ISO/IEC 15408), security assurance measures for development process  (ISO /IEC 21827) , measures for Security Management (ISO/IEC 27001) etc should  be implemented with Zero tolerance for non-compliance. Personnel expertise and knowledge should be mandated through professional certifications.

  3. Secure protocols, Soft wares and Products:

    At present there is no system in place for ‘cyber-supply-chain-security-ratings’. This is a big loophole as these hardware and software ,  have to be frequently changed and have the potential of getting compromised thus putting the cyber- security at stake. These software and hardware become the gateway to attacks in the cyber domain.

  4. Active-Dynamic Security Measures for Prevention, Detection and Response Capabilities:

    The technology of the malware and the methodology of its deployment in cyber-domain has radically evolved over the years. “The attacks are advanced, targeted, stealthy and persistent and cut across multiple threat vectors [web, email, file shares, and mobile devices ] and unfold in multiple stages, with calculated steps to get in , signal back out of the compromised  network,  and get  the valuables out (Fire Eye White  Paper, 2013).  While firewalls, new generation firewalls , Intrusion Prevention Systems etc. are important security defenses, they can not stop  dynamic attacks  that exploit zero-day vulnerabilities. Hence integrated platforms having the capability to identify and block these sophisticated attacks,   and thus safeguard their critical and sensitive assets. Attack  Attribution Analysis should be deployed to  identify the attackers (Lewis, 2014) . Zero Trust Model of Information Security also helps in reducing the attacks from digitally- signed-malware (IBM Forrester Research Paper, 2013).

  5. Threat and vulnerability Analysis:

    A detailed threat and vulnerability analysis of the resources should be maintained and updated periodically as per minimum At least a broad 3×3 matrix  as per NIST FIPS 199 Standards is suggested.  A risk- profile- dashboard should be kept ready. The assets which are critical need to be identified clearly and SOPs for their protection be put in place.

  6. Continuity and contingency Plans should be prepared and kept ready. Many nations are deploying in house “Government- off- the- shelf“ (GOTS) technology for sensitive defense and critical infrastructure systems. The attacks are inevitable but if the services are maintained, the confidence and trust of the stakeholders is vindicated. The Governments should also work towards a mechanism of Cyber Liability and Cyber Insurance which at present is generally lacking.

  7. Information Sharing: In most of the countries there is a mechanism to share information on security breaches and related developments by establishing Computer Emergency Response Teams (CERTs). These national CERTs also interact with each other at international level. However , the author’s personal experience shows that many of the enterprises  don’t share information on breaches  in order to protect corporate image. Sometimes the security breaches may not be even known for months. There is an urgent need for devising a mechanism where reporting of security  breaches should be made mandatory with penalties for non-compliance.

  8. Awareness, education and training: Practice makes a man perfect. Continuous awareness and educational campaigns for various stakeholders on dos and don’ts have to be run repeatedly. The training workshops  for the workforce  should be organized. We should always remember that the human behavior is the greatest risk to security and this risk can only be minimized by education and training only.

  9. Reforms in school and Collegiate Education: If cyber security as a subject is included in the school and college curricula, a ready cyber work force would be available to be deployed across various sectors. The online training courses in cyber security should be designed and incentives offered to workers, if they attend and successfully complete these courses.

  10. International Collaboration: The cyber domain has no boundaries. The attacker sitting in one country using the system and resources of a second country may compromise a sensitive database in a third country. If there is no international collaboration, what  ever strategy we may design, it is bound to fail. Although, there is a Regional Convention on Cyber Crime but unfortunately there is no such convention on cyber security [The Council of Europe (Budapest) convention on Cyber Crime, 2004]. There is a necessity for comprehensive international cooperation to sort-out issues regarding Jurisdiction, Mutual Assistance, Extradition , 24 / 7 Network etc ( Clough, 2013). However , personal experience of the author is that there is need to galvanize international cooperation, which is presently almost ineffective at operational level.

However, to achieve the desired objectives, the strategies need to be implemented through acquirement and effective allocation of sufficient resources through accountable responsibilities ( Ward & Peppard, 2002). But even if all this is done, the things will not turn out as desired ( Johnson & Scholes, 2002 ) as demonstrated in the following figure. Therefore a strategic management process that can adapt to changing scenarios during the implementation of original strategy is not a substitute for the original strategy but it’s a way of making it work.


The Cyber Domain by virtue of its unique characteristics of anonymity, availability and maneuverability in space and time, having no international borders ,  and capacity to give asymmetric results hugely disproportionate to the resources deployed, offers tremendous risks and opportunities for various stakeholders. It is rapidly expanding its scope from internet of human beings and machines to internet of things. It has the potential of disrupting a Nations economy, polity, civic and military infrastructure and last not the least, may lead to the cyber-warfare. Any policy and strategy to defend the Cyber Domain should be dynamic enough to adjust to the rapidly changing nature of attacks and technology. The futuristic scenarios  like “Botnet of Things” have the potential of disrupting the normal life of humans. The strategic policy explained in this essay,  if implemented,  should take care of various aspects of defending the cyber domain. However, as the attacks, technologies and attackers evolve, the policy should also evolve with the same rapidity. The ‘unknown- unknown’ of the cyber domain is yet to be seen by the world.

Note:      The views expressed in this paper are of the author and do not necessarily reflect the views of the organizations where he worked in the past or is working presently. The author convey his thanks to Chevening TCS Cyber Policy Scholarship of UK Foreign and Commonwealth Office, who sponsored part of this study. The author is also thankful to his student Ms. Avinash Kaur @ NICFS who skillfully converted the given situations depicted by the author into the cartoons included in this paper.


Applegate,S. 2012, “ The Principle of Maneuver in Cyber Operations  accessed on 14/03/2014.

Brenner, S.W. 2002, “Organized Cybercrime? How Cyberspace May Affect theStructure of Criminal Relationships  (Vol. 4, Issue 1, Fall 2002), p. 24.”, Journal of Law & Technology, North Carolina, vol. 4, no. 1, pp. 24.

Clough , J. 2013, “The Budapest Convention on Cyber Crime: Is Harmonisation Achievable in a Digital World.
Accessed on 13/03/2014.”, 2nd International Serious and Organised Crime Conference, ed. Presentation, Monash University, Brisbane, 29-30 July 2013.

Cornish, P., Livingstone, D., Clemente, D. & and Yorke, C. 2009, Cyber Security and the UK’s Critical National Infrastructure. Accessed on 13/03/2014, A Chatham House Report, United Kingdom.

Cornish, P., Hughes, R. & and Livingstone, D. 2009, Cyber space and the National Security of the UnitedKingdom : Threats and Responses. Accessed on 14/03/2014, A Chatham House Report, United Kingdom.

Cornish, P., Livingstone, D., Clemente, D. & and Yorke, C. 2010, On Cyber Warfare on: 11/03/2014, A Chatham House Report, United Kingdom.

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Luiijf, E., Besseling, K. & and de Graaf, P. 2013, “Nineteen national cyber security strategies’, , Vol. 9, Nos. 1/2, pp.3–31.”, Int. J. Critical Infrastructures, vol. 9, no. 1/2, pp. 3–31.

NIST 800- 39, Managing Information Security Risk: Organization Mission and Information System View.  , NIST Special Publication., USA.

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Reputational Risk, Main Risk Associated with Online Social Media

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IJCC, Volume XXXIV No. 2 July-Dec.,2015 ISSN 09704345

Sandeep Mittal, I.P.S.,*


The Indian Journal of Criminology & Criminalistics,
Volume 35 (2) July – Dec. 2015


Social media is undoubtedly a revolution in the business arena blessing the organizations with the power to connect to their consumers directly. However, as the saying goes nothing comes without a cost; there is cost involved here as well. This article examines the risks and issues related to social media at the time when the world is emerging as a single market. Social networking and online communications are no more just a fashion but an essential feature of organizations in every industry. Unfortunately, inappropriate use of this media has resulted in increasing risks to organizational reputation threatening the very survival in the long-run and necessitating the management of these reputational risks.

This article attempts to explore the various risks associated with social media. The main aim of this study is to particularly focus on reputational risks and evaluate it’s intensity from the perspectives of public relations and security staff of an organization. The article is structured to firstly explain the concept of social media followed by identification of various social media risks and the analysis of reputational risk from perspectives of public relations and organizational security staff. The article then based on the analysis provides various recommendations in order to help the contemporary organizations to overcome such risks and thus, enhance their effectiveness and efficiency to gain competitive advantage in the long-run.

Keywords: Reputational Risk, Online Social Media, OSM Security, OSM Risk, Organizational Reputation, Cyber Security, Information Assurance, Cyber Defence, Online Communication.


With changing times, the concept of socializing has been transforming. Globalization and digitalization to a large extent are responsible for the same. With internet, it is possible to stay connected with people located in various regions of the world. One such medium of socializing is the social media. In todays time, online social media services have been one of the most vibrant tools adopted not only by individuals but also corporate and government organizations (Picazo-Vela et al., 2012). Corporates in fact have been abiding social media extensively as it is one of the cheapest ways of communicating with the masses. The importance of social media can be understood from the fact that at present there are more than 100 million blogs that are highly operational and connect people from across the world (Kietzmann et al., 2010). Further there has been a surge in social media members for websites like Facebook or Twitter with over 800 million active users in Facebook in 2012 and 300 million users of Twitter (Picazo-Vela et al., 2012). In spite of being a very powerful mode of communication it is subjected to a large number of risks.

Organizations do not operate in vacuum, thus, management of reputation is crucial for them, as it affects their markets as well as the overall environment. Organizational reputation not only impacts its existing relations but also affects the future courses of action (McDonnell and King, 2013). In this article, an attempt is made to understand the various reputational risks associated with social media that affects an organization’s working and also suggests some ways to overcome them.

Concept of Social Media

The foundations of social media have been laid by the emergence of Web 2.0 (Kaplan and Haenlein, 2010). It is with the help of this technological development that social media is accessed at such a wide scale and is available in devices like cell phones and tablets, other than personal computers and laptops. Social media is gaining importance in the corporate world as decision makers and consultants are exploring its various aspects to exploit its potential optimally (Kaplan and Haenlein, 2010). Social media is an online communication system through which information is generated, commenced, distributed and utilized by a set of consumers who aim to aware themselves regarding various aspects related to a product, service, brand, problems and persona (Mangold and Faulds, 2009). It is also known as consumer-generated media. In simple terms, it can be explained as a platform to create and sustain relationships through an Internet based interactive platform.

Social media is categorized under collaborative projects, blogs, content communities, social networking sites, virtual game worlds, and virtual social worlds (Kaplan and Haenlein, 2010). The examples of various communication systems under social media are provided in the Table 1 for ready reference.

Organizations have realized the importance of social media and have been using it along with other integrated marketing communication tools to converse with target audience effectively and efficiently (Michaelidou et al, 2011). This is mainly because the modern day consumers are shifting from traditional promotional sources to such modernized sources. Social media has a very strong hold and is influencing consumer behavior to a large extent. Out of all the above few examples, Twitter has emerged as one of the most powerful social media tools. In the present day scenario, approximately 145 million users communicate by transferring around 90 million ‘tweets’ per day, of 140 characters or less (Kietzmann et al, 2010). Another example is of Youtube in which videos can go viral in few seconds and can attract more than 9.5 million views for a single video (Kietzmann et al, 2010).

Table 1: Example of Social Media Types

Social Media Type Example
Social networking websites MySpace, Facebook, Faceparty, Twitter
Innovative sharing websites Video Sharing (Youtube), Music Sharing (, Photo Sharing (Flickr), Content Sharing (, General intellectual property sharing (Creative Commons),
User-sponsored blogs The Unofficial AppleWeblog,
Company-sponsored websites/blogs, P&G’s Vocalpoint
Company-sponsored cause/help sites Dove’s Campaign for Real Beauty,
Invitation-only social networks
Business networking sites LinkedIn
Collaborative websites Wikipedia
Virtual worlds Second Life
Commerce communities eBay,, Craig’s List, iStockphoto,
Podcasts For Immediate Release: The Hobson and Holtz Report
News delivery sites Current TV
Educational materials sharing MIT OpenCourseWare, MERLOT
Open Source Software communities Mozilla’s,
Social bookmarking sites which permit browsers to suggest online news stories, music, videos Digg,, Newsvine, Mixx it, Reddit

Source: Mangold and Faulds, 2009.


Risks Associated with Social Media

Before discussing the various risks associated with social media, it is essential to understand the various risks faced by an organization while using the internet. This can be depicted with the help of a diagram provided as Figure 1.

Figure 1: Internet Related Risks for Organizations
Source: Lichtenstein and Swatman, 1997

In Figure 1, other internet participants imply other members from the internet society. These risks are very general and are experienced by organizations even in cases where they are not connected to the internet like the risks associated with corrupted software (Lichtenstein and Swatman, 1997).

The horizon of risks have expanded to a larger extent by things becoming more critical and complicated with extensive popularity and usage of social media (Armstrong, 2012). Organizations are challenged with new and unique risks which need to be catered proactively. These risks threaten the effectiveness of this mode and thus organizations fail to reap its benefits completely. It is due to such risks that many organizations have either limited their approach towards usage of social media or do not resort to such measures. Such risks range from data outflow and legal complications to risks associated with reputation (Everett, 2010).

These risks can be categorized under two heads namely; those related to user and security related issues (Chi, 2011). User related risks are inadequate certification controls, phishing, information seepage, and information truthfulness (Chi, 2011). The security related risks are Cross Site Scripting (XSS), Cross Site Request Forgery (CSRF), injection defects, deficient anti-automation (Chi, 2011).

Out of all the risks related to social media, an organization is mainly threatened with risks related to information confidentiality, organizational reputation and legal conformities (Thompson, 2013). Issues related to information confidentiality emerge mainly because information is shared digitally using social media. Thus, there are chances of such information getting hacked or shared unintentionally. This may raise risks related to privacy thus affecting information integrity.

Legal issues while using social media are bound to take place mainly because this media is used for global approach and is therefore affected by international rules and regulations. It is challenging for an organization to understand varied legal obligations of differing countries and then determine a universally accepted legal protocol. Risks related to organizational reputation are discussed in detail in the next section.

Reputational Risk

Reputation of an individual or organization is related to one’s reliability and uprightness. Thus, managing and securing the reputation becomes highly critical. With organizations resorting to social media extensively, they are bound to experience such reputational risks thus affecting their goodwill negatively. Reputational risks arise from the fact that organizations share all-embracing information with customers and browsers (Woodruff, 2014). This information in many circumstances is misused which damages organizational reputation. The various depressing effects from reputational damage are negative impact on goodwill in the real world, restricting development of social contacts and contracts, detrimental impact on attracting potential customers (Woodruff, 2014). In one of the research studies, 74 per cent employees accept the ease of causing reputational damage to organizations through social media (Davison et al., 2011). It is due to this reason that organizations to a large extent scrutinize the use of social networking sites by their employees.

Public Relations

Public relations depict organization’s relations with its various stakeholders. Organizations use the social media platform to interact with their stakeholders and thus develop a strong and positive public image. In fact the social media, organizations and stakeholders together interact within the dynamic business world (Aula, 2010). These interactions are shaped by organizational public relations objectives and the extent of social media usage for developing organizational reputation. But developing and sustaining a positive public relation is not easy as they are hampered to a large extent when subjected to reputational risks. Organization’s personal identity is at stake as it can be plagiarized and used without authentication (Weir et al, 2011).

Reputational risks are related to organizational credibility and results from security risks like identity theft and profiling risks. These risks challenge organizational reputation by questioning its compliance with societal rules and regulations (McDonnell and King, 2013). Organizations to a large extent fail to integrate social media with organizational and stakeholders objectives resulting into ineffective reputation management.

Social media has made organizations global, due to which even minor incidents get highlighted internationally. Local issues get international fame resulting in a negative reputation for the organization globally. Further with social media being active, organizations cannot escape from the clutches of negative publicity (Kotler, 2011). One example of failure of reputation management that resulted in earning negative fame across the world is Nestle. In 2010, Greenpeace uploaded a video on YouTube against KitKat by Nestle (Berthon et al, 2012). The video went viral and resulted in negative publicity for the organization. Though the advertisement was made mainly for consumers in Malaysia and Indonesia for conserving rainforests but it was acknowledged by the world at large.

Another risk that is faced by the organizations is the creation of a public image through standardized marketing programs. Differing stakeholders from different countries use different social media platforms which make it essential for organizations to clearly analyze and understand their usage requirements and patterns. This is where most of the organizations fail and thus are unable to use social media appropriately.

Below is a graph that depicts usage of differing social media platforms in different countries as per statistics in 2011 (Berthon et al, 2012).

Figure 2: Relative Frequency of Search Terms from Google Insights: Social Media by Country

Source: Berthon et al, 2012

Organizational Security Staff

Organizational employees are indispensable for the success. But these employees can also be a threat to the organization. It is mainly possible as employees have access to organization’s confidential and important information which they can leak to outsiders. With social media’s growing popularity, the line between personal and professional conversations on web has become blurred. Further inspite of keeping this information under security they can evade such systems through illegal measures. Further research has proved that only in USA approximately 83per cent staffs use organizational resources to contact their social media (Zyl, 2009). Other than using these resources for personal messages exchange over social media, 30 per cent employees in USA and 42 per cent employees in UK also exchanged information related to their work and organization (Zyl, 2009). This depicts the intensity of problem of security risks related to social media. Thus, the organizational security staff has to be on its toes to ensure that such information is highly secured and not utilized inappropriately.

In 2002, an employee of an international financial services organization in the USA infiltrated the organizational digital security systems and used ‘Logic Bomb’ virus to delete approximately 10 billion files from 1300 organization’s servers. This resulted in a financial loss of around $3 million and it also had to suffer due to negative publicity. This depicts failure of organizational society staff to combat risks. Such issues have become very common in the social networking world. Employees have the freedom to generate nasty and unsecured comments or links that harms organizational reputation, finances and creates security related risks (Randazzo, 2005).

With the help of social media, social engineering attacks are possible due to easy admission to hefty information by hackers, spammers and virus creators. They can easily misuse the same by creating fake profiles, stealing identity and collect details with regards to job titles, phone numbers, e-mail addresses. Further they can also corrupt systems using malwares that ultimately are a threat to organizational data. Data infiltration and loss ultimately impact organizational reputation negatively as these leaked data are used for unauthentic and illegal activities.


Organizations who are either unaware of these risks or are unable to defend themselves can face dire consequences at times. Organizations are aware of the gains that they would derive from using social media networking and thus take such risks readily. These risks cannot be avoided completely,organizations need to work out measures through which they can manage these risks and mitigate their negative influences.

In order to overcome issues related to privacy that ultimately results in hampering one’s reputation, the organizations should take proactive measures before using social media. During the sign-up phase or creation of social networking profiles, specific concerns related to privacy and confidentiality should be resolved and proper regulations designed (Fogel and Nehmad, 2009). These rules and regulations should be very clearly communicated to organizational employees so that they have complete information regarding social media dos and don’ts. Further the organization should not only design strict punishments but also execute them against those who break such rules (Hutchings, 2012).

One of the ways to overcome reputational risks related to social media is by appointing an efficient social media manager. These managers are specialists and would be responsible for determining the social media related protocol based on organizational top secret information, contemporary issues and prospective plans (Bottles and Sherlock, 2011). The social media manager should have a responsibility towards the organization and various stakeholders and thus intermingle with them sincerely and empathetically (Brammer and Pavelin, 2006). The manager should also have a vigilant eye and an analytical attitude to identify various fact, figures and events that can impact organizational reputation and thus take corrective actions. As security staff play crucial role in determining organizational security standards, the organizations should be very specific in recruiting and selecting them. Besides, there should be a greater emphasis in the organization development of culture, values, and ethics within an organization.

Organizations should also understand that management of reputational risks requires collaborative and innovative approach. The organization needs to develop a social media involvement protocol by consulting and taking advice from differing sources like legal experts, marketing experts, international business experts, media experts and other stakeholders (Montalvo, 2011). The organization should also be innovative in selecting and distributing the content through social media so that it can responsibly deal with issues.


Organizations today prefer to use social media in comparison to traditional media (Hutchings, 2012). It is mainly due to the various benefits associated with the same but they cannot also overlook various associated risks. It takes ages for an organization to develop a positive reputation and thus careful measures needs to be taken to maintain and sustain it. Organizations are unable to exercise control on social media completely but they can take restrictive measures to ensure that reputational risks are minimized and their ill effects are combated.

The article identified that the major reputational risks related to social media for organizations arise due to data outflow, identity theft, profiling risks, inappropriate choice of public relation strategy, inability to control external environmental factors, inappropriate information management and security policy and failure to have efficient and effective security staff. In order to overcome such issues, organizations need to appoint social media managers and hire employees skilled in social media management. Further, it should be a collaborative and creative approach and design social media protocol to mitigate such risks.

To conclude, it can be stated that the organizations need to be proactive and have a vigilant eye on environmental factors to secure themselves and benefit from online social media.

Note: The views expressed in this paper are of the author and do not necessarily reflect the views of the organization where he worked in the past or is working presently, the author convey his thanks to Chevening TCS Cyber Policy Scholarship of UK Foreign and Commonwealth Office, who sponsored part of this study.


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