Jurisdictional issues in Cyberspace
Written by: Ashima Mishra
Cyberspace jurisdiction has always been a controversial issue not only in India but also at the global level. Cyberspace has to always undergo various jurisdictional issues. The initiation of any case or complaint has to face the problem of jurisdiction at different levels.
In the contemporary world, a person can even live without food for a day but that person cannot survive without internet connectivity even for a day. Internet and cyberspace have become basic necessities of human beings. The Internet has been playing a major role in every field of our lives whether it is business, education, growing connections worldwide through social platforms, globalization, politics, medicine, and infrastructure or science and technology.
The advancement of the internet came to be known as cyberspace because it gave birth to a virtual world. If the real world is full of crimes and wrongdoings, then how could we expect that the virtual would be not. Cyberspace includes all the electronic devices which also function through the internet. The devices like software, data storage devices, the internet, websites, emails, and even mobile phones, ATM machines.
Everything has its merit and demerit. Similarly, cyberspace has both advantages and disadvantages. Somehow it has also simplified our lifestyle and also made it more complicated by continuous cyber crimes.
Cyber Crimes refer to those criminal activities which begin from minor electronic offences to more serious offences like illegal gambling, theft of personal information, cyber defamation, cyberstalking, cyberbullying, web jacking, hacking of social media, data diddling, etc.
The offences and to prove this offence are not bigger issues in cyber crimes but the main problem lies in the jurisdiction in this kind of case. We all are aware that cyberspace has no restriction of a physical boundary or any particular jurisdiction. This helps the criminal to commit such crimes by staying any place in the world.
For example- A person being in London can send defamatory messages to a person in India. The things which he required to do this are a cell phone and internet connection. He can also hack the entire social media account of that person being in any part of the world. Once this crime is committed, the main problem remains in the jurisdictions. Which laws should be applied in these crimes, as the cyber laws differ from country to country.
What is Cyberspace Jurisdiction?
Jurisdiction refers to the power to determine where the crime has taken place and to hear a particular case that is to be placed in an appropriate court of law.
The main problem in cyberspace is that when the dispute takes place, both parties may belong to different parts of the world, which creates a bigger problem. A single internet transaction may involve the laws of two different countries.
Usually, the jurisdiction lies where the cause of action arises. However, the method of determining jurisdiction has become incredibly difficult when there are multiple parties involved from different parts of the world.
In a cyberspace transaction, basically, three parties are involved and they are as follows-
- The user
- The server host
- The person with whom the transaction is taking place with the need to be put within one month.
Types of Jurisdictions
There exist three kinds of jurisdictions that help in matter determining a states’ jurisdiction under international law and they are-
- Prescriptive Jurisdiction- It means the jurisdiction of the state to make laws that are applicable to persons and to certain circumstances. International law exercises certain restrictions on a state’s authority to prescribe laws if there is a conflict of interest with another state.
- Jurisdiction to Adjudicate- It refers to the power of the state to subject a person or thing to a court or administrative tribunal, either civil or criminal, whether or not the state is a party to the proceedings.
- Jurisdiction to Enforce- It means the power of a state to induce or punish someone for non-compliance with laws and regulations.
Apart from this, there is also another kind of jurisdiction called personal jurisdiction. It refers to that kind of jurisdiction over persons involved in a particular lawsuit.
Pecuniary jurisdiction means the jurisdiction related to money. Here it is seen whether the court is competent to try the case of the monetary value of the suit in question.
How Jurisdiction Is Determined In Cybercrime Through National Laws?
As we know, jurisdiction is the power of the court to hear and determine the cause and adjudicate upon the matter that is litigated before it. The power of the court to take cognizance of the matter brought before it but when it comes to determining the jurisdiction in the context of cyberspace it became a strenuous part of the law.
Usually, the concept of cyber law is also dealt though the IT legislation Act. The Information Technology Act of 2000 came into force on 17 October 2000. The objective of the Act is to provide legal recognition to e-commerce and to facilitate the storage of electronic records with the Government.
This act has also a provision that penalizes cybercrime and also gives strict punishments. The provision regarding the jurisdiction of cybercrimes trials has also been mentioned in the act.
Important Case Laws Related To Cyberspace
- SMC Pneumatics (INDIA) PVT. Ltd. Vs. Jogesh Kwatra [suit no. 1279/2001]
This is about a cyber defamation case. The defendant was an employee of the plaintiff’s company who started sending derogatory and obscene texts to his employers and also to subsidiaries of the said company all over the world. The main reason behind this was to malign the reputation of the company all over the world.
The Delhi High Court assumed jurisdiction over a matter of defamation of reputation of corporate through electronic mails. An ex-parte injunction was granted by the court.
- Banyan Tree Holding (P) Limited Vs. A. Murali Reddy and Anr Civil suit(OS) No. 894 of 2008
In this case, the court held that a passive website, having zero intention to mainly target the spectators outside the state where the host of the website is located, cannot vest the forum court with jurisdiction.
Convention on Cybercrime and Its Impact on India
In the year 2001, a convention took place which came to be known as Budapest Convention. This was the first international convention made and it mainly dealt with the internet and cybercrime by keeping compliance with the national laws. Many countries signed this treaty which included France, South Africa, Japan, Canada and many more. On the other hand, India and Brazil declined to accept this convention because they were not a part of the drafting. But later as the number of cybercrimes increased in India, it accepted the convention in the year 2018.
Many laws and regulations have been made to control crime but there are no specific cyber laws in India. Even if there is, it is just the foundation part that needed many amendments. The Information Technology or cyber convention does not regulate the whole crime. It is really important for us to make strong laws to be enacted for the management of cybercrimes.
- The Budapest Convention, 2001
- Information Technology Act, 2000