March 4, 2021

Jurisdictional Aspects in Cyber Law and Information Technology Act

cyber law

Introduction

At the end of the 20th century and the beginning of the 21st century, the use of computers and mobile phones saw a significant rise. Later, with its increasing utility, the rise of the internet began in the 1990s. In the last 15-16 years, the role of social media, online payments, education, gaming, communication, movies, search engines have eventually become an essential part of everybody’s day to day life, and so did the misuse of it have increased. The real reason behind this is the lack of stringent laws, awareness, lacunas in the safety and privacy of a user and etc. 

The criminal activity on the web (internet) is termed as cyber-crime. Cyber-crime is prevented and protected from Cyber laws. The non-presence of physical boundaries on the internet and non-effective security to the data of the user is one of the main reasons for cybercrime. 

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With the increase in the number of internet users and free browsing content from all over the world, it is easier for a person to get trapped in cybercrime by a person(hacker, internet stalkers, cyber terrorists, scammers, and many others) in a different country. For instance, a person might commit online fraud by claiming to sell some item of a particular country to a person situated in a different country and taking payment online but notsending the item specified. He is indulged in this activity with other customers of different countries, then a question of jurisdiction arises as to where the complaint will be filed.  

Cyberlaw also governs cyberspace. “Cyberspace refers to the virtual computer world, and more specifically, an electronic medium that is used to facilitate online communication. Cyberspace typically involves a large computer network made up of many worldwide computer sub-networks that employ TCP/IP protocol to aid in communication and data exchange activities.”[1] The ambit of Cyber law is so vast that its jurisdiction in a case involving various countries is very difficult to ascertain. A website, app, product, content in one country may be legal but illegal in another, the parties may be residents or non-residents, which makes this concept all the more complex. Cyber law’s jurisdiction depends on the kind of cyber-crime and the location from which it has been done. 

The fact that the internet has no boundaries, no restraints, and cyber-crime posing the same features results in conflicting laws. International law and municipal law have different approaches, and cyber law is mainly tied between both, which results in no conclusion.

Issues of jurisdiction in cyberspace

Jurisdiction gives power to the appropriate court to hear a case and declare a judgment. In cybercrime instances, the victim and the accused are generally from different countries, and hence deciding which jurisdiction will prevail is conflicting. The internet as stated earlier has no boundaries; thus, no specific jurisdiction can be titled over its use. A user is free to access whatever he wishes to and from wherever he wishes to. Till the time a user’s online activity is legal and not violative of any law, till then there is no issue. However, when such actions become illegal and criminal, jurisdiction has a crucial role to play. 

For example, a user committing a robbery in country ‘A’ while sitting in country ‘B’ from the server of country ‘C,’ then which country’s jurisdiction will apply needs to be answered. In this case, the transaction might have been done virtually, yet the people are present physically in their respective countries governed by their laws and the court generally decides the jurisdiction of the country where the crime has been actually committed.

In cyberspace, there are generally three parties involved in a transaction: user, server host, and the person with whom the transaction is taking place, with the need to be put within one jurisdiction.[2] All three parties in this illustration belong to three different countries, now the laws of ‘A,’ ‘B’ or ’C’ will be prevalent or not, or even municipal laws will be applicable or international laws are the issues of jurisdiction in cyberspace. The extent of a court’s competency to hear a cross border matter and apply the domestic state laws is another issue.


Types of jurisdiction

There are three types of jurisdiction recognized in international law, namely-

  • Personal Jurisdiction – It is a type of jurisdiction where the court can pass judgments on particular parties and persons. In the case of Pennoyer v. Neff[3], The Supreme Court of the US observed that the Due process enshrined in the constitution of the US constrains the personal jurisdiction upon its implication on the non-resident, hence there is no direct jurisdiction on the non-residents. However, this restraint was curbed over by the minimum contact theory which allowed the jurisdiction over the non-residents as well.
  • Subject-matter jurisdiction – It is a type of jurisdiction where the court can hear and decide specific cases that include a particular subject matter. If the specific subject matter is of one court but the plaintiff had sued in any other court then the plea will be rejected and the plaintiff will have to file the case in the court which is related to that matter. For instance, a complaint regarding a consumer good should be filed in the district consumer forum rather than district court as district consumer forums specifically look at consumer related cases. In the same manner, all environmental-related cases are tried in NGT rather than a district court. 
  • Pecuniary Jurisdiction – This type of jurisdiction mainly deals with monetary matters. The value of the suit should not exceed the pecuniary jurisdiction. There are various limits set for a court that can try a case of certain value beyond which it is tried in different courts. For example, district consumer forum looks at the matter not exceeding 20 lakh rupees, State consumer dispute redressal commission which has pecuniary jurisdiction of more than 20 lakh rupees but not exceeding 1 crore, National consumer dispute redressal commission which has pecuniary jurisdiction involving cases of more than 1 crore rupees in India. It is dependent upon the claim made in proceedings and is structured in hierarchical order.


Prerequisites of jurisdiction

There are three prerequisites of valid jurisdictions that are needed to be followed. A person is compelled to follow the rules and regulations of the state. The state has the power to punish a person violating such laws.

  • Prescriptive Jurisdiction – This type of jurisdiction enables a country to impose laws, particularly for a person’s activity, status, circumstances, or choice. This jurisdiction is unlimited. Hence, a country can enact any law, legislation on any matter, even where the person’s nationality is different, or the act happened at a different place. However, International law prevents any state from legislating any such law contrary to other countries’ interests. 
  • Jurisdiction to Adjudicate – Under this jurisdiction, the state has the power to decide the matter on a person concerned in civil or criminal cases despite the fact that the state was a party or not; a mere relationship between both is sufficient. It is not necessary that a state having the prescribed jurisdiction must also have jurisdiction to adjudicate.
  • Jurisdiction to Enforce – This jurisdiction depends on the existence of prescriptive jurisdiction; hence if prescriptive jurisdiction is absent, then it cannot be enforced to punish a person violating its laws and regulations; however, this jurisdiction is not exercised in an absolute sense and a state cannot enforce its jurisdiction on a person or the crime situated or happened in a different country.

Jurisdiction to prescribe is based on various theories-

  • Subjective territoriality– It lays down that if the act is committed in the territories of the forum state, then its laws will be applicable to the parties. The act of the non-resident person in the forum state is the key element under it. For example- A country can make a law criminalizing an act in its territory, and then the subject aspect of the territoriality will recognize it.
  • Objective territoriality – It is invoked when an act is committed outside the forum state’s territorial boundary, yet its impact is on the forum state. It is also known as ‘Effect Jurisdiction.’ It was established in the case of United States v Thomas[4] in which the defendant published phonographic material and to see and download it, he provided the subscribers with a password after getting a form filled which included their personal details, and the plaintiff claimed it to be violative of its domestic laws, the court held that “the effect of the defendant’s criminal conduct reached the Western District of Tennessee, and that district was suitable for accurate fact-finding,” and the court has the jurisdiction. 

 In the landmark case of Playboy Enterprise, Inc. v Chuckleberry Publishing, Inc.[5], the defendant operated a website in Italy on which obscene photographs were displayed, and some of its users were the citizens of the USA. The court found it to be against US laws and banned the website from falling under US jurisdiction; however, the court does not have the jurisdiction to put a complete ban on the use by the other users of different states.

  • Nationality – It is applied to the offender who is the national of the state; for example, a person of a state commits an offense in a foreign country that is punishable in the domestic laws, then the state has the power to punish its citizen.
  • Universality – The acts which are universally acclaimed as crimes such as hijack, child pornography. A cyber-criminal can be convicted in any country for committing such a heinous crime. It presumes that the country has jurisdiction to prosecute the offender of a cyber-crime.  


The Test evolved
of Jurisdictional Aspects in Cyber Law

There are several tests that determine the jurisdiction in the cases of cyber-crime.

Minimum Contacts Theory

This test is applicable where both or any of the parties are outside the territorial jurisdiction of the court. In the landmark judgment in Washington v International Shoe Company[6], this theory was evolved by the US Supreme Court. “”[7]

After this case, the court laid down three criteria- 

  • “The non-resident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections.
  •  the claim must be one which arises out of or results from the defendant’s forum-related activities, and
  •  exercise of jurisdiction must be reasonable.”[8]

In the case of CompuServe Inc v Patterson[9], The court held that contracts related to cyberspace are also covered under the domain of minimum contacts theory.


Sliding Scale Theory

Sliding Scale theory is also known as Zippo Test. It is the most accepted test in deciding personal jurisdiction in cyberspace cases. On the basis of the interactivity of the websites, the jurisdiction is decided. The more the number of interactivities, the more the courts have personal jurisdiction over it in the forum state.

For a passive website, the courts have almost no jurisdiction, while in the middle spectrum site, the court may or may not have jurisdiction; however, in the case of a highly interactive site, the court has jurisdiction.

In the landmark case of Zippo Manufacturer v Zippo.Com[10], the plaintiff Zippo Manufacturer of lighters in Pennsylvania sued the defendant Zippo.com for an infringing trademark. The defendant had a lot of interactivity; hence the personal jurisdiction will be applicable to the defendant.


Effects Test and International targeting

Few conditions are required to be satisfied for the Effect test, mainly the action taken expressly against the forum state with the knowledge and intention that it will injure the state. If the court thinks fit that the defendant’s action caused injuries to the forum state, then personal jurisdiction is asserted in cyberspace cases where no contact is present. In the landmark case of Calder v Jones[11], The Supreme Court of the US observed that the court in the state can exercise personal jurisdiction on non-residents. In this case, the editor and writer of a national magazine published a defamatory article on the residents. The facts of the case are that the plaintiff Shirley Jones sued the distributor, the writer, and its editor Calder of a national magazine, defaming her as an alcoholic. Jones was a resident of California while the article was written and edited in Florida. Jones sued the defendants in the court of California because the magazine had a vast circulation in the state. The court held that the court of California has personal jurisdiction over the defendants.  

In Panavision International v Toeppen,[12] Toeppen, the defendant was indulged in cyber-crime by using the plaintiff’s trademark commercially and selling it back to him for a hefty amount. The California court held that by applying the effects test, the court had personal jurisdiction over the non-resident defendant. 

Jurisdiction under Information Technology Act, 2000

“Information Technology Act, 2000 in section 1(2) states that the Act extends to the whole of India and applies also to any offence or contravention thereunder committed outside India by any person.”[13]

Further, “Section 75 states that subject to the provision of sub-section (2), the provision of this act shall also apply to any offence or contravention committed outside India by any person irrespective of his nationality. For the purpose of sub section (1), this act shall apply to an offence or contravention committed outside India by any person if the act or conduct constituting an offence or contravention that involves a computer, computer system, or computer network located in India.”[14]

This provides prescriptive jurisdiction in India, and any act committed violative of this Act in India by a resident, or a non-resident will be punishable.



Conclusion

Despite having laid down various tests to figure out jurisdiction, it is still debatable in the courts of law to ascertain the jurisdiction in cyber-crime cases involving more than one country. The criteria to determine the jurisdiction are different in different countries. Hence, a test of jurisdiction might qualify in one country but not qualify in another, so where the disputed parties are of different states, it is very difficult to acclaim the jurisdiction of one nation over the other. In such a situation more than one test should be incorporated in deciding the jurisdiction.

In India, Information Technology Act, 2000 does govern cyberspace yet there is no provision relating to the territorial jurisdiction and hence it is the current requirement from the legislators to incorporate provisions relating to extra-territorial jurisdiction in the Act.

However, Internet usage will increase every second on this earth, and therefore the laws should also be made progressive enough to combat cyber crime and issues relating to their jurisdiction. International law should determine certain parameters in deciding the jurisdiction, and the cases in which jurisdiction cannot be decided should be tried in the international court of justice itself.  

Bibliography

  • Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565, 1877 U.S.
  • United States v Thomas ,74 F 3d 701(6th Cir 1996).
  •  Playboy Enterprise, Inc. v Chuckleberry Publishing; Inc., 939 F Supp 1032 (S.D.NY. 1996).
  •  Calder v Jones ,465 US 783 (1984).
  •  CompuServe Inc v Patterson, 89F 3d 1257(6th Cir1996).
  •  Zippo Manufacturer v Zippo.Com, 952 F Supp 1119 (DCWD Pa 1997).
  •  Panavision International v Toeppen,141 F 3d 1316 (9th Cir1998).
  •  Section 1(2), Information Technology Act, 2000.
  • Karnika Seth: Computer Technology Law, Chapter 2 Jurisdiction in the Borderless Cyberspace

[1]Techopedia,https://www.techopedia.com/definition/2493/cyberspace#:~:text=Cyberspace%20refers%20to%20the%20virtual,used%20to%20facilitate%20online%20communication.&text=Cyberspace’s%20core%20feature%20is%20an,a%20broad%20range%20of%20participants. (last visited January 04, 2021)

[2]Georgina Pereira, Cyber Space Jurisdiction: Issues and Challenges, Legal Bites , (last visited January 04, 2021) https://www.legalbites.in/cyber-space-jurisdiction-issues-challenges/

[3]Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565, 1877 U.S.

[4]United States v Thomas ,74 F 3d 701(6th Cir 1996). 

[5] Playboy Enterprise, Inc. v Chuckleberry Publishing; Inc., 939 F Supp 1032 (S.D.NY. 1996).

[6] 326 US 310 (1945), 317 See Burk, Dan L. “Jurisdiction in a World Without Borders” 1 Va. J.L. & Tech. 3 (Spring, 1997) www.vjolt.net/vol1/issue/vol1_art3.html (accessed on 18th June, 2012.), Tricia Leigh Gray, “Minimum Contacts in Cyberspace: The Classic Jurisdiction Analysis in a New Setting”, 2002 Journal of High Technology Law, http://www.jhtl.org/docs/pdf/ TGRAYV1N1N.pdf, (accessed on 19th June, 2012).

[7]Karnika Seth: Computer Technology Law, Chapter 2 Jurisdiction in the Borderless Cyberspace, (last visited January 05, 2021), http://www.karnikaseth.com/wp-content/uploads/Karnika%20Seth’s%20Computers%20Inernet%20%20New%20Technology%20Laws.pdf

[8] Id. at 7.

[9] CompuServe Inc v Patterson, 89F 3d 1257(6th Cir1996).

[10] Zippo Manufacturer v Zippo.Com, 952 F Supp 1119 (DCWD Pa 1997).

[11] Calder v Jones ,465 US 783 (1984).

[12] Panavision International v Toeppen,141 F 3d 1316 (9th Cir1998).

[13] Information Technology Act, 2000, section 1(2).

[14]Id at 13.


Author Details: Prachi Sharma [Student, Dharmashastra National Law University, Jabalpur]

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