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INTERNATIONAL POSITION OF CYBERSPACE JURISDICTION

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This article is written by Boorsu Hemalatha of 6th semester of B.A.LL. B of Sri Padmavathi Mahila Visvavidyalayam, an intern under Legal Vidhiya             

ABSTRACT:

In the present days, cyber users are increasing. The whole world is full of the internet and cyberspace; it is faster than ever. If anyone wants anything, they just use the internet and satisfy their needs, like online shopping, online ticket bookings, entertainments, online communication etc. The virtual environment is just like a physical world, and it is created by humans. And day-to-day cybercrimes are increasing. A Lot of people are misusing the cyberspace. Crimes in virtual space are known as cybercrimes. There are cyber laws for cybercrimes. Cyberspace has a vast space in the universe. Cybercrimes were happening between people in two or more countries. They were involving themselves in cybercrime with another country’s citizen by sitting at house. For example, a person from country A was virtually involved in a crime with a person from country B.

Keywords: Cyberspace, internet, online, virtual environment, physical world, cybercrimes, cyber laws.

INTRODUCTION:

Cyber jurisdiction, in simple words the addition of Principles of international jurisdiction to cyberspace. There are no physical (national) boundaries to cyberspace. It has a vast and dynamic space. With just one click, you can access any website from anywhere in the world. The websites with terms of service agreements, privacy policies and declaimers were subjected to their own Domestic laws.

What is Cyberspace?

Cyberspace means it is a virtual computer world, and specifically, it is an electronic device that is used for online communications. Cyberspace actually involves a large number of networks. Cyberspace grants users the ability to share their information, interact, share their unique ideas, play games, use social media, conduct business, create new apps and do many other activities.

The word cyberspace was introduced by William Gibson in his book Neuromancer in the year 1984, which is science fiction and defined as an interconnection between the human mind and computers. He described cyberspace as 3D virtual land space created by a network of computers. The new Oxford dictionary of English gives cyberspace definition as the imaginary environment in which communication occurs over computer networks.

Features of Cyberspace

Applicability of Cyberspace

Cyber jurisdiction and the concept of Jurisdiction in Cyber law

The scope of the cyber law is so wide that cyber jurisdiction of a case involving various countries is so difficult to find out. Websites, apps, games, and some other cyber space activities may be legal in one country but illegal in another. Cyber law’s jurisdiction depends on what kind of cybercrime it is or where it took place. The number of internet users eventually increases, and everyone is addicted to the virtual environment. In the last 15-16 years, the role of social media, online gaming, online shopping, virtual communication has become essential for every one’s life. So that the misuser are also increased.

Criminal activities on the internet are known as cybercrimes. Cyber laws are used for the protection and prevention of cybercrimes. It is not a physical presence, so cyber criminals are very easily doing cyber crimes.

Cyber law also controls the cyberspace. Cyberspace defines a virtual computer world, and specifically, it is an electronic device that is used for online communications. The truth is, the internet has no boundaries. International law and municipal law have various approaches, and cyber law is mainly linked between both, which leads to no conclusion.

Issues of the Cyberspace Jurisdiction

The particular court has the power to hear a case and give judgement under its jurisdiction. In Cybercrime cases, the accused from one country and the victim from another country; both are from different countries. So that the conflicting point is where the cyber jurisdiction comes into play in that case. The internet has stated earlier that there are no boundaries, so there is no specific jurisdiction in cyberspace. The cyber user can freely access whatever he wants to and from wherever he wishes to. If a user’s cyber activity is legal and not violating any law, then there is no issue. Although, when such activities become illegal and crimes, the jurisdiction has a critical role to play.

For example, the accused is from the country X, and the victim is from the country Y. Both were from different countries. The accused involved into the crime on the internet is from the country Z. This case is from different countries so the jurisdiction is difficult to find out. These two parties in this illustration belong to two different countries, and the accused is involved in a crime from another country. Now, whether the laws of ‘X,’ ‘Y’, or ’Z’ are prevalent or not, or whether municipal laws are applicable or international laws, is the issues of jurisdiction in cyberspace. The extent of a court’s capacity to hear a cross-border matter and apply domestic state laws is another issue.

Types of Cyberspace Jurisdiction

There are 3 types of Cyberspace Jurisdiction recognized in International law. They are:

Personal jurisdiction means it is a jurisdiction where the court can give judgements on particular persons and parties. It is also based on nationality or citizenship, which grants a state authority over individuals based on their link to that state.

Subject matter Jurisdiction is a Jurisdiction where the court can take a case and give judgement on the basis of particular subject matter. If any plaintiff files a case in another court which is not subject matter to that court, then the petition will be returned to the plaintiff, and that court won’t hear the case. The plaintiff should have to file the case in the court that is subjected to that matter.

Pecuniary jurisdiction is a jurisdiction where the court mainly deals with monetary matters. The value of the suit is very important in the pecuniary jurisdiction. The value of the suit should not exceed this jurisdiction. There are different limits set by courts. Each court has its limits. For example, a court has jurisdiction to look into matters not exceeding 50,000 rupees, and a district court has jurisdiction to look into matters not exceeding 20 lakh rupees.[2]

Jurisdiction in International law

Sometimes the jurisdiction in international is also called as Extra-territorial jurisdiction. There are three pre-requisite jurisdictions:

Prescriptive Jurisdiction refers to the strength of a State to rule its people, property and transactions or to lay down its conduct, usually through the progress of laws or regulations. The legislature of the state can create, amend or repeal any legislation because a state has unlimited prescriptive jurisdiction.

Enforcement Jurisdiction is the power of the Government of the State to force compliance or punish non-compliance with laws, orders, regulations and judgments. Although a state doesn’t have the power to enforce its laws on another country’s people. This jurisdiction can apply its laws only when there is jurisdiction.

A state having adjudicative jurisdiction power to subject a person or things to administrative tribunals or courts, whether they are civil or criminal, whether or not the state is party to the proceedings. If there exists an adequate relationship between the state and the person.

Principles of Extra-Territorial Jurisdiction

There are five Principles of Extra-Territorial Jurisdiction.

The territorial nexus principle states that a state’s territory for jurisdictional purposes extends to its land and dependent land, aircrafts, airspace, ships, territorial sea and exclusive economic zone. National courts adopted this principle; it is subject to national law, save for those issued immunity under International law.

This principle divided into two categories:

  1. Objective territorial jurisdiction
  2. Subjective territorial jurisdiction
  3. Nationality Principle:

 This principle allows a state to exercise jurisdiction over its nationals, regardless of where they are located. Many countries claim criminal jurisdiction over their citizens for actions committed abroad.

Under this principle, states claim jurisdiction over acts committed abroad that harm their citizens. It’s based on the nationality of the victim rather than the offender.

This principle permits a state to claim jurisdiction over acts committed outside its territorial boundaries when such acts threaten the state’s national security, government functions, or other vital interests.

This principle is based on the idea that certain crimes are of international concern and all nations can claim jurisdiction over the perpetrators, regardless of where the crime was committed or the nationality of the perpetrator or victim. Piracy on the high seas is a classic example, but this principle has also been invoked for crimes like genocide, torture, and terrorism.[3]

Position in European countries

Cyberspace jurisdiction in European countries is a complex and evolving area of law, influenced by both domestic legislation and EU-wide regulations and directives. Jurisdictional issues within the European Union have largely been harmonized via regulations such as the Brussels I Regulation (recast). European countries often cooperate with other nations on matters of cyber jurisdiction, especially in cases of cybercrime. The Budapest Convention on Cybercrime is a key instrument in this area, and many European countries are signatories.

It’s essential to understand that cyberspace jurisdiction remains a challenging area of law, with technology often forming legislation. As a result, legal perspectives and norms can evolve. If you need information on a specific aspect or country, it would be wise to consult up-to-date legal sources or professionals.

Position in India

In India, only few cases concerning personal jurisdiction in cyberspace have been decided by the superior court. The reason behind this is that Indian citizen have not yet accepted or adopted the new technology as a suitable mechanism to undertake legal obligations. It is coupled with extremely slow justice delivery system. The United States adopted the “minimum contact” approach; they follow minimum approach. The term ‘Lexi Fori’ means law of the forum or law of the jurisdiction where the case is pending.

Indian civil law, the Civil Procedure Code, provides jurisdiction to the cases. According to CPC, section 6 deals with the pecuniary jurisdiction, and section 16 deals with the subject matter jurisdiction. Section 19 of the CPC deals with suits for movable property and section 20 deals with where the defendant resides or cause of action arises, in other words territorial jurisdiction.

The issue of section 20 of the CPC[4] is that the territorial jurisdiction mentioned here is within India, this section doesn’t prescribe about how to deal with crimes committed in different country.

Section 20 –

 Other suits are to be instituted where defendants reside or a cause of action arises.

A suit can be filed in a court within whose jurisdiction:

  1. The defendant, or each of the defendants (if there are multiple), at the time of the commencement of the suit, either resides or works for gain; or
  2. Any of the defendants (if there are multiple) resides or works for gain, provided the leave of the court is obtained; or
  3. The cause of action, wholly or in part, arises.

It essentially means that a lawsuit can be filed in a place where the defendant resides, works, or where the event (cause of action) that led to the lawsuit took place.

Indian courts jurisdiction over foreign citizens

As per Section 16 of the CPC:

Suits to be instituted where subject-matter situated subject to the pecuniary or other limitations prescribed by any law, suits –

  1. or the recovery of immovable property with or without rent or profits,
  2.  for the partition of immovable property,
  3. For foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
  4. For the determination of any other right to or interest in immovable property,
  5. For compensation for wrong to immovable property,
  6. For the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate:

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant, may where the relief sought can be entirely obtained through his personal obedience be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

Therefore Indian courts cannot assume jurisdiction over immovable property located in foreign countries.

As per Section 19 of the CPC:

“Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.” [5]

Enforcement of foreign judgements

In India, foreign judgements can be enforced in two ways.

Reciprocating territories refer to countries or territories with which India has a bilateral agreement to recognize and enforce judgments. If a country is recognized as a reciprocating territory, it means that judgments passed by courts in that country can be directly enforced in India, subject to the provisions of the Code of Civil Procedure, 1908.

  Non-reciprocatory country judgment can be enforced in Indian courts only by filing a law suit. The foreign judgement is taken as evidence.[6]

Legal provisions and acts related to Jurisdiction in Cyberspace

Case laws related to cyberspace Jurisdiction

 This case dealt with the jurisdictional issues arising from contravention trademarks on the Internet. In this case, the Delhi High Court held that the jurisdiction to entertain a suit for trademark contravention arises where the contravention website is reachable.

This case dealt with the jurisdictional issues arising from the online sale of contravention goods. In this case, the Madras High Court held that the jurisdiction to entertain a suit for copyright contravention arises where the contravention goods are sold.

This case dealt with the jurisdictional issues arising from managing online speech. In the case, the Supreme Court held that Indian courts have the jurisdiction to manage online speech that is indecent, defamatory, or creates public disorder.

In this case, the Supreme Court of India clarified the jurisdictional matters about cybercrimes committed abroad but affecting India. The Court held that to try such cases Indian courts have the jurisdiction.

 This case dealt with the jurisdiction of Indian courts in cases of online defamation. The Court held that courts have jurisdiction if the defamatory content is published or made available in India, regardless of whether the website hosting the content is located in India or abroad.

Conclusion

The international position on cyberspace jurisdiction remains complex and evolving. Due to the borderless nature of the internet, determining jurisdiction over online activities is challenging. While individual nations attempt to exert control and jurisdiction over digital activities within their boundaries, achieving a global consensus is difficult. Without universally accepted standards, conflicts and disputes in cyberspace are inevitable. Collaboration and mutual understanding among nations are essential to creating a more harmonized approach to cyberspace jurisdiction in the future.

[1] Yash Jain, Cyber Security and its Legal Implications, IPLEADERS, Sep 2, 2023, 11:00Am, https://blog.ipleaders.in/cyber-security-and-its-legal-implications/

[2] Concepts and Issues of Jurisdiction in Cyberspace, LAWBHOOMI, Sep 2, 2023, 11:45Am, https://lawbhoomi.com/jurisdictional-aspects-in-cyber-law-and-information-technology-act/#:~:text=This%20jurisdiction%20is%20unlimited.,contrary%20to%20other%20countries%20interests.

[3] Jurisdictional Issues in Cyber Space, SBHAMBRIADVOCATES, Sep 3, 2023, 10:20Am, https://www.sbhambriadvocates.com/post/jurisdictional-issues-in-cyber-space

[4] Miss Prevy Parekh & Miss Tarunya Rao, Cyberspace and Jurisdiction, vol. 2 Issue 5, Journal On Contemporary Issues of Law (JCIL), 1, https://in.docworkspace.com/d/sIPfh8fCgAabV2KcG

[5] Miss Prevy Parekh & Miss Tarunya Rao, Cyberspace and Jurisdiction, vol. 2 Issue 5, Journal On Contemporary Issues of Law (JCIL), 1, https://in.docworkspace.com/d/sIPfh8fCgAabV2KcG

[6] Miss Prevy Parekh & Miss Tarunya Rao, Cyberspace and Jurisdiction, vol. 2 Issue 5, Journal On Contemporary Issues of Law (JCIL), 1, https://in.docworkspace.com/d/sIPfh8fCgAabV2KcG

[7] Information Technology Act,2000, No. 21, Acts of Parliament, 2000 (India).

[8]  Indian Penal Code, 1860, No.45, Act of Parliament, 1860 (India).

[9] The Code of Criminal Procedure, 1973, No. 2 of 1974, Act of Parliament ,1973 (India).

[10] Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).

[11] World Wrestling Entertainment Inc v. M/s Reshma collection, 2014 (59) PTC 158 (Del).

[12] Jayalakshmi v. Hamsini Ammal & Ors, 1995 AIR 995.

[13] Shreya singhal v Union of India, (2015) 5 SCC 1

[14] Avnish Bajaj v. State (N.C.L) of Delhi (2005) 3 CompLJ 364 Del

[15] State of Tamil Nadu v. Suhas Katti 2004, CC.No. 4680 of 20041

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