Cyber Space: its Legal Jurisdiction

 

Mrs. Debashree Chakraborty

 

ABSTRACT:

The people through-out the world is now connected to one another and the whole world seems to become a big family. It is worth to admire that this technological sector has made the human life more smooth and easy going. Like every coin has both side, advancement of technological scenario also have both advantages and disadvantages. This disadvantage resulted to various crimes such as Hacking, Identity Theft, Pornography, etc. There are several factors which makes it difficult to solve the cases. One of the important factors is that there is no particular geographical or physical boundary. Also in this cyber world there is multiple numbers of parties appearing from the various corners of the world. Thus, the result is utter confusion that which country’s law is applicable for a particular crime and as a result the courts feel very difficult to solve these matters. It is also worth to take notice that it is also very confusing that which court has the competent authority to try a particular case. Another important factor is that, it is tough to find out the face of the criminal. Thus, the main question arises how come the legal jurisdiction grasps the cyber crime where there are no territorial boundaries and even where the criminals do not have any physical presence in the forum.

 

 

Introduction:

The world of technology is touching the zenith. With every sphere and every corner of the world has become one by the means of this technology. The people through-out the world is now connected to one another and the whole world seems to become a big family. This booming sector plays a major role in the development of a State and its society. Its wide use has proved its strength and has built a virtual world of its own. Though we take the note on its brighter side, but the darker side of the sector cannot be ignored. On the other hand, the misuse of this cyber-world is at large in various forms such as Hacking, Identity Theft, Pornography, etc, has been a recent trend of the cyber offences. Without having a particular concept of jurisdiction in the cyber-world, it becomes very difficult for the courts to solve the various. The main basis of jurisdiction can be either by the party or by the cause of action. Here cyber space has been viewed as a self-regulating entity controlled by no authority. Thus, the main question arises how come the legal jurisdiction grasps the cyber crime where there are no territorial boundaries and even where the criminals do not have any physical presence in the forum.

 

Cyber Space:

The online world of computer networks and the internet is termed as Cyber Space[1].Cyber space is the national environment in which communication over the computer network occurs.[2] The word “cyber space” is credited to William Gibson who used it in his book, Neuromance written in 1984. 

 

Gibson defines cyberspace as “a consensual hallucination experienced daily by billion of legitimate operators, in every nation, by children being taught mathematical concepts. A graphical representation of data abstracted from the banks of every computer in the human system. Unthinkable complexity, lines of light ranged in the non-space of the mind, clusters and constellations of data[3].

 

To define the cyber offences it can be stated that the offences committed against individuals or a group of individuals with a criminal motivation of harming the reputation of the victim or cause physical or mental harm, directly or indirectly, using the means of modern technology and telecommunication network such as internet and mobile phones (SMS/MMS).

Jurisdiction: Its meaning and scope

 

Basically it is stated that there are four types of court jurisdiction. Basic two types of court jurisdiction are original and appellate jurisdiction. Original jurisdiction, in which a court hears a case at the first instance where in the other hand, an appellate jurisdiction is one where the court hears only an appeal from the trial court. Another two types of jurisdiction are “in personam” and “in rem” jurisdiction. In case of personem, a court has jurisdiction over the persons involved in the lawsuit and is empowered to deal with matters between them such as in a law suit on a debt or accident case. And in the case of “in rem”, the court has jurisdiction over the particular thing the law suit involves such as a particular piece of land.

 

International law is the set of rules and regulation which is basically binding in relations basically binding in relations between two nations. This international law differs from sate based legal system in that it is primarily applicable to countries rather than to private citizens[4]. National law may become international law when treaties delegate national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court[5].

 

There are three distinct International Legal disciplines: firstly, Public International Law, which governs the relationship between states and international entities; secondly, Private International Law, or conflict of laws which states two basic areas for a matter (i) which jurisdiction may hear a case and (ii) the law concerning which jurisdiction applies to the issues in the case. Third international discipline is Supranational Law which is concerned with the laws of nations may be held inapplicable when conflicting with a supranational legal system, when that nation has a treaty obligation to a supranational collective.[6]

 

Thus, following are those Indian legal principles which try to grasp court jurisdiction of different types of crimes:

 

Jurisdiction under the Civil Procedure Code, 1908: 

Generally, Civil Procedure Code, 1908 (CPC) lays down the rules in which a civil court is to function. Regarding the jurisdiction matter, CPC divided the jurisdiction of the civil court on two basis, these are pecuniary or monetary basis and territorial or area-wise classification. Section 6[7] of the Act sates that jurisdiction of a civil court should be limited on particular amount related to the subject matter of the case, which varies from state to state. The term ‘pecuniary’ it means “consisting of or relating to money…”[8] ‘Territorial jurisdiction’ literally means “the sovereign jurisdiction that a state has over land within its boundary limits over its inland and territorial waters and to a reasonable extent over the air space above and subsoil below in such land and waters, and over all persons and things within those areas subject to its control”[9].  With this concept CPC stands hierarchy of courts even in civil matters, i.e., district court, the High Court.

 

Thus, CPC totally deal with civil matter within the state and hence cyber-crime is not able to come under its perview. Even Section 15 to 20 of CPC provides the place of suing or the subject matter of dispute. But, the main issue arise in case of cyber space, that is, the parties and the subject matter of the dispute, for example, if the party wants to business within Indian territory but residing outside Indian territory and during his business purpose if he launched any site which further raise a dispute, then it will be a problem to solve that who are the competent authorities deals this case.

 

Jurisdiction under the Code of Criminal Procedure, 1973: 

In Chapter 13 where Section 177 to 189[10] explains regarding the jurisdiction of the criminal courts in inquiries and trials. Where it is states that offences shall be inquired ordinarily inland tried by a Court within whose local jurisdiction it was committed. Even in case of severed local areas, where offence was committed or continues then also it may be inquired into or tried by a Court having jurisdiction of court, it may be the court within whose local jurisdiction of the offence was committed or the accused person is found.

 

Section 188 and 189[11] speaks about jurisdiction of the court in the case where offence committed outside India. Here offence is committed by an Indian citizen outside India and an offence was committed by a person who is not a citizen but he committed outside India on any ship or aircraft which is registered in India, in both cases person may be dealt with in such offence as if it had been committed at any place within India at which he may be found.

 

Thus, Code of Criminal Procedure expands its ambit within India, on its citizen and any ship or aircraft which is registered in India. It means Indian court has only jurisdiction in these three fields. But again, jurisdiction of cyberspace is not clear. In India, Code of Criminal Procedure left to cover the area of cyberspace and its jurisdiction. As we know, transactions took place through this networking or internet system by multiple parties residing in various territory of the whole world not within India which causes conflict of laws as it is not uniform throughout the different countries or states.

 

Jurisdiction under the Information Technology Act, 2000:

 Information Technology Act, 2000 (IT) provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication. This Act shall apply to an offence or contravention committed outside India by any person if the act or conduct constituting the offence or contravention involves a computer, computer system or computer network located in India.[12] Section 13[13] of the Act deals with the jurisdiction of internet transaction, where it is stated that person who dispatched is the originator and person who receive is the addressee in the field of cyber transaction. Thus, to point out the jurisdiction in cyber space, this section speaks that its originator or the addressee has more than one place of business then principal place of business shall be the place of business, or in case where there does not have any place of business, then usual place of residence in relation to a body corporate, means the place where it is registered. Section 61[14] clearly mentioned that the Civil Court has no jurisdiction in the matter of cyber world. Again, Section 75 and section 2(2)[15] claim that India has long arm jurisdiction over foreign country in the matters of cyber crime as these sections deal with extra-territorial jurisdiction and the application of law. 

 

Thus, IT Act 2000 and its subsequent amendments tried to cover both territorial and extra-territorial jurisdiction for the matter of cyber space. But still basic problem of extra-territorial jurisdiction cannot be solved. For example, if an user is from one of the states of the Union of India and is carrying his business transactions with a foreign nation through a server of third foreign nation in this case it will be problematic if any dispute arises, then it cannot be possible to have an uniform law among these countries.

 

Jurisdiction under International Law:

“Law of nation or the International Law” is the name of the body of customary and conventional rules which are considered legally binding by civilized states in their intercourse with each other.[16]

 

International Law adopts various methods to settle disputes among the countries peacefully. Sometimes the International Law adopts such mechanisms such as direct negotiations among the disputing countries and sometimes involves a third party through good office, mediations, inquiry and conciliations. As important thing is to be noted that such mechanism or methods are non-binding and none of them are precedent over any one. This method of involvement of various regional and global international organizations of World War II, One of such organization is the United Nation (UN).

 

Principle of Universal Jurisdiction is classically defined as “a legal principle allowing or requiring a state to bring criminal proceedings in respect of certain crimes irrespective of the location of the crime and the nationality of the perpetrator or the victim”[17]. In other words, universal jurisdiction is a legal doctrine which permits domestic courts to try and punish perpetrators of some crimes so heinous that they amount to crimes against the whole humanity, regardless of where they occurred or the nationality of the victim or the perpetrator. The crimes subject to universal jurisdiction include piracy, slavery, and crime against humanity, war crimes, torture and genocide. Universal jurisdiction is a department for traditional approaches that require a direct connection between the prosecution state and the particular crime. There is no formal legal basis for universal jurisdiction, but it represents a customary international norm. Universal jurisdiction allows for the trial of international crimes committed by anybody, anywhere in the world.[18] International conventions and international customary norms may also provide for the exercise of universal jurisdiction by state parties.

 

A convention is a special type of treaty or agreement between many countries, whereas treaty is any written agreement signed by a few countries or international signed by a few countries or international organizations. A convention is a special type of international treaty. a treaty comes into force as an attempt to end conflict or disagreement between a few countries whereas a convention is an attempt by many countries discuss global issues and reach an agreement to be followed by signatories.

 

As stated earlier that the term ‘Jurisdiction’ refers to the legal competence of state officials to prescribe and enforce rules with regard to persons, things and events. By highlighting a difference between those situations in which a state may exercise its jurisdiction and those situations in which it may not, the international law makes the clarification about the authority of officials and to minimize friction among states.  As remarked by Lord Macmillan, “It is an essential attribute of the sovereignty of this realm, as of sovereign independent States, that it should possess jurisdiction over all persons and things within its territorial limits and in all causes, civil and criminal, arising within its limits.” Reference may be made here to Supreme Court of India case: Central Bank of India vs. Ram Narain, (AIR 1975 SC 36), wherein the Supreme Court considered the question whether Penal Code could be applied to a person who was not a citizen of India at the time of committing the offence. The Supreme Court observed- “A foreigner was not liable to be dealt with in British India for an offence committed outside British India for an offence committed outside British India under the provisions of the sections as they stood before the adaptations made in them after the partition in India.” Illustration (a) to Section 4, I.P.C delimits the scope of the section. It indicates the extent and ambit of this section. 

 

No doubt that the International Law is quite successful in maintaining a peaceful and amicable relationship among the countries with the help of various mechanism and organizations. But, it can be observed that having different mechanism, International Law is insufficient to cover the primary jurisdiction in the matter of cyber crimes. The main reason for this is that in this cyber-world there is multiple numbers of parties from different corners of the world whose exact location is difficult to be traced.  Even India is not a signatory of the Convention of Cyber Crime itself.

 

Cases on Cyber Jurisdiction

Internet creates virtual world. There are no demarcated boundaries between the people who utilize the web. The utility extends to information, e-banking, e-commerce, communication etc. The technology is also open to hacking, pornography, gambling, identity-theft, etc. This requires understanding of jurisdiction. Various principles have been evolved to decide the jurisdiction. To mention: (i) minimum contest test, (ii) personal jurisdiction, (iii) long term statutes. The whole trouble with internet jurisdiction is the presence of multiple parties in various parts of the world who have only a virtual nexus with each other. Then, if one party wants to sue the other, where can he sue? Traditional requirement generally encompass two areas:

i) The Place where the defendant resides, or

ii) where the cause of action arises

 

Following are some of the known cyber cases where in crimes have been committed by using the information technology.

 

 

Parliament Attack Case[19]: 

Bureau of Police Research and Development at Hyderabad had handled some of the top cyber cases, including analysis and retrieving information from the laptop recovered from terrorists, who were gunned down when Parliament was under siege on December 13, 2001 was sent to Computer Forensic Division of BPRD after computer experts at Delhi to trace much of its contents. The laptop contained several evidences that confirmed of the two terrorists’ motives, namely the sticker of the Ministry of Home that they had made on the laptop and posted on their ambassador car to gain entry into Parliament House and the fake ID card that one of the two terrorist was carrying with a Government of India emblem and seal. The emblem (of the three lions) was carefully scanned and the seal was also craftly made along with residential address of Jammu and Kashmir. But careful detection proved that it was all forged and made on the laptop.[20]

 

State of Tamil Nadu vs. Suhas Katti, 2004[21]: 

The case related to posting of obscene, defamatory and annoying message about a divorcee woman in the yahoo message group. E-mails were also forwarded to the victim for information by the accused through a false e-mail account opened by him in the name of the victim. The posting of the message resulted in annoying phone calls to the lady in the belief that she was soliciting. Based on the complaint made by the victim, the Police traced the accused to Mumbai and arrested him within next few days. The accused was a known family friend of the victim and was reportedly interested in marrying her. She however married another person. This marriage later ended in divorce and the accused started contacting her once again. On her reluctance to marry him, the accused took up the harassment through internet. The accused paid fine amount and he was sentenced to 2 years RI for 2 years under section 469 IPC and for the offence under section 509 IPC sentenced to undergo 1 year simple imprisonment and for the offence under section 67 of the Information Technology Act, 2000 to undergo RI for 2 years and to pay fine.[22]

 

Cybersell, Inc. v. Cybersell, Inc[23]. Plaintiff Cybersell, Inc. (Cybersell AZ), an Arizona corporation with principals Laurence Canter and Martha Siegel, was incorporated in May 1994 providing advertisements for commercial services over the Internet. In August 1994, Cybersell AZ filed an application to register the name “Cybersell” as a service mark, and was approved for trademark registration using cyber.sell.com in October 1995. In February 1995, the site was then taken down for reconstruction. In May 1995, while Cybersell AZ was in the process of registering as a federal service mark, Cybersell, Inc. (Cybersell FL), a Florida corporation formed “to provide business consulting services for strategic management and marketing on the web” established a website advertising its services at cybsell.com. Cybersell FL used their website to provide contact information for their business, including their phone number and email address.

 

The court found through tests that it is not enough grounds for personal jurisdiction because Cybersell AZ did not suffer harm in a particular geographic location in the same sense that an individual would. Cybersell FL’s web page simply was not aimed intentionally at Arizona knowing that harm was likely to be caused there to Cybersell AZ.

 

International Shoe v. Washington[24] The Supreme Court of USA in this case first adopted a new standard for jurisdiction over out-of-state non- resident defendants. The case involved a Washington court attempting to assert jurisdiction over a corporation that was incorporated in Delaware and had a principal place of business in Missouri. The court allowed jurisdiction because there was sufficient "minimum contacts" with Washington. The court explained, “Due process requires only that in order to subject a defendant to a judgement in personam [personal jurisdiction], if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.”[25] The court also explained that the minimum contacts standard was not a mechanical test, but one that depended on the "quality and nature of the activity in relation to the fair and orderly administration of laws."[26] If the nature and quality of the activities is continuous and systematic, a court will have general jurisdiction over the entity. General jurisdiction allows a court to decide any cause of action over the defendant, even if the activity occurred out of state. If the nature of the activity is of an isolated nature, a court would only have specific jurisdiction. Specific jurisdiction only allows a court to exercise jurisdiction for a cause of action which arises from the defendant's activities within the forum state.[27]

 

Conclusion:

In the recent era, every sphere of one’s life exists in cyber space. This development gives birth to various new types of crimes which can be termed as cyber-crimes. The specialty of these types of crimes is that the crimes are committed by the means of computer and other electronic devices and also with the help of internet. It seems that it has become very important to manage and control these crimes. There are several factors which makes it difficult to solve the cases. One of the important factors is that there is no particular geographical or physical boundary. Also in this cyber world there is multiple numbers of parties appearing from the various corners of the world. Thus, the result is utter confusion that which country’s law is applicable for a particular crime and as a result the courts feel very difficult to solve these matters. It is also worth to take notice that it is also very confusing that which court has the competent authority to try a particular case. Another important factor is that, it is tough to find out the face of the criminal. Though our technology is very advanced, even then we can only find through the IP address the exact location of the machine which was used for the crime. The real face of the criminal is very difficult to find. As the cyber world is connected to every corner of the world, it is also very tough to collect sufficient evidence to prove a particular crime. Taking the advantage of this the criminals are escaped without getting the proper punishment for the crime. Also the concept of uniform law in relation to cyber crime is a matter of controversy as it related to various number of countries. The main disadvantage of this is that the criminals may commit a crime which not a crime in one country but is a crime in another.

 

In this context, in India Code of Civil Procedure 1908 defines the term ‘jurisdiction’, restricting its preview only over the civil matters and not the criminal matters. On the other hand the Criminal Procedure Code 1973 expands the ambit of jurisdiction but again it is applicable only in the Indian Union and over the citizens of India as well as over the ships and aircrafts that are registered in India. Though International Law has a number of mechanisms to control these crimes through various treaties and convention, yet India has not signed in the Convention of Cyber Crime. After recognizing the intensity of the crime, India passed Information Technology Act in the year 2000 and subsequent amendments are made in the Act from time to time. Even the Act tries to expand its ambit to extra territorial jurisdiction, still it is difficult for the courts to punish the defendant as they may be from a different country, and it can only provide relief to the plaintiff.

 

Looking at the emergence need for a unique law to manage and control the cyber crimes, the time has come when all the countries of the world should come forward and co-operate to form a unique law. India being an advanced country in the field of technology and day by day the use of electronic media is increasing; it has become important to take cognizance of the crimes so committed in the cyber world. India should also participate in various international treaties and conventions to eradicate such evil practices in the cyber world and make the cyber space a safer place.

 

Reference:

1.       Marriam Webster dictionary, Cyber Space, An Encyclopedia Britanica Company, available at http://www.marriamwebster.com/dictionary/cyberspace (Last visited on February 20th, 2014) at 11:52 a.m.

2.       Oxford Dictionaries Language Matters; Cyberspace, available at http://www.oxforddictionaries.com/definition /english/cyberspace; (Last visited on February 20th, 2014) at 12:06 p.m.

3.       Techterms.com, Cyberspace, available at http://www.techterms.com/definition/cyberspace; (Last visited on February 20th, 2014) at 12:50 p.m.

4.       International Law, en.wikipediaorg/wiki/International law; (Last visited on February 20th, 2014) at 11:23 a.m.

5.       Id.5

6.       DR. S.K. Kapoor, International Law & Human Rights, 18TH EDN..

7.       Bare Act, The Civil Procedure Code, 1908 (2006)

8.       The Free Dictionary, Pecuniary,  word, available at http://www.thefreedictionary.com/pecuniary; (Last visited on  February 26, 2014)

9.       Merriam Webster Dictionary, Territorial jurisdiction, available at http://www.merriamwebser.com/dictionary/ territorialjurisdiction (Last visited on February 26, 2014).

10.     Tandon’s, The Code Of Criminal Procedure, (2008)

11.     Id.,

12.     See Information Technology Act, 2000, § 75(2).

13.     Id.

14.     Information Technology Act, 2000, § 61

15.     Id., § 75 & 2 (2)

16.     L. Oppenhein & Dr. S.K. Kapoor , International Law and Human Rights (18th edn. 2011).

17.     Kenneth C. Randall, Universal Jurisdiction Under International Law,  Texas Law Rev. 66 (1988), 785-788

18.     Pradelle Geraudde La, La Competency Universelle 974 (2000).

19.     Parliament Attack Case, Some Indian case studies, 2010-11, available at wwwcyberlawclinic.orf/casestudy.asp (Last visited on March 24, 2014 at 2pm)

20.     Id.,9

21.     State of Tamil Nadu vs. Suhas Katti, 2004, Some Indian case studies, 2010-11, available at wwwcyberlawclinic.orf/casestudy.asp (Last visited on March 24, 2014 at 2pm)

22.     Id.

23.     130 f.3d 414 (9th cir. 1997)

24.     326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)

25.     Id.

26.     Id.

27.    Kesan Jay, Personal Jurisdiction in Cyberspace: Brief Summary of Personal Jurisdiction Law, University of Illinois at Urbana Champaign, Learning Cyberlaw in Cyber Space, available at http://www.cyberspacelaw.org/kesan/kesan1.html (Last visited on  March 22, 2014)at 12:53 a.m.