cyberspace jurisdiction
TRANSCRIPT
INTRODUCTION
Cyberspace is a ‘‘borderless’’ world—a world of its own. It refuses to accord to
the geopolitical boundaries the respect that private international law has always
accorded to them and on which it is based. Therefore there is a need to have a
different solution to this different problem. The solution lies neither in adopting
a ‘‘hands-off’’ approach nor in simply extending mutatis mutandis the existing
conflicts rules. Looking at the dismal history of private international law, the
present author proposes a treaty based international harmonisation model as the
most ideal one where rules are certain and predictable and at the same time
flexible in order to ensure that the potential benefits of this technology are
meaningfully consumed by the human civilisation.1
Along with the unique opportunities the Internet offers, it also poses new and
significant challenges to traditional legal philosophy.2 The growth of
transborder activities poses new challenges for law enforcement agencies. Most
existing law enforcing systems were designed to address the fraudulent and
deceptive commercial practices against consumers when such practices were
mostly of domestic in nature. But after the advent of internet it has been seen
that the current system of laws is not capable of addressing cross boundary
issues.
The problem of jurisdiction arises because it is only in the real world that there
exist mechanisms to confer rights, immunities, privileges, etc. with no
corresponding equivalent in the cyber world. In other words, rights are rights
only vis-a-vis the real world. On account of the differences in the normative
standards of conduct among the different political units in the real world, the
question of jurisdiction becomes particularly important, for what may be legal
1 Sachdeva, “International Jurisdiction in Cyberspace”, [2007] C.T.L.R.2 Oberding and Nordenhaugh , ”A Separate Jurisdiction for Cyberspace?”, available at <http://jcmc.indiana.edu/vol2/issue1/juris/html>, visited on 5th nov 2013.
in one legal system may be prohibited by another, and the same may be
circumstantially justifiable in yet another.
DEFINITION OF JURISDICTION
The general meaning of the term jurisdiction refers to, ‘Power of the State to
exercise its authority over property and persons within its geographical limits’.
However, in the context of dispute resolution, a clear concept of jurisdiction is
needed to answer questions such as ‘which is the most appropriate court to hear
the dispute? What law will be applied to resolve the dispute? Which authority
will enforce the judgment? In such circumstances the term jurisdiction would
involve- ‘The scope of the courts power to examine and determine the acts,
interpret and apply laws, make orders and declare judgments. Geographic area,
the type of parties who appear, the type of relief that can be sought, and the
point to be decided may limit jurisdiction.’3
The whole notion of jurisdiction is vital in the context of dispute resolution
because of the deeply rooted relationship between physical proximity and the
effects of any legal activity. Jurisdiction enables the States to monitor and
control the activities of property and persons within and across its territorial
boundaries. The subjects of a sovereign States laws are primarily located within
its physical borders and so are greatly affected by the application of its laws.
Legal theories about sovereignty, territoriality and an entity’s physical presence
support the traditional notion of a Courts jurisdiction in its role as adjudicator.
These schools of thought recognize the sovereign power of a State and the
territorial origin and application of a set of laws. A key assumption in all these
theories is that a State, which is supported by the people of a particular area,
3 Solanki, “Jurisdiction in Cyber Space: Where to File a Suit”, vol1, issue 10, Paripex - Indian Journal of Research, available at <http://theglobaljournals.com/paripex/file.php?val=NTQy>, visited on 5t nov 2013.
makes laws which will only be valid, applicable and enforceable within its
territory.
Cyberspace, which constitutes a technology-driven imaginary space, defies
control by mechanisms evolved in the real world essentially based on
geopolitical boundaries. It is a new social order, which cuts across cultures,
civilizations, religions, etc. and creates a ‘‘new realm of human activity’’4
forcing mankind to rethink the appropriateness of extending the existing rules to
it. Cyberspace clearly disregards the general correspondence, existing in the real
world, between physical borders and ‘lawspace’’—based on considerations of
power, effects, legitimacy and notice.5
The law, in the ‘‘non-virtual world’’, works essentially on a two way premise
that a certain set of legal rules is applicable to only one set of persons, who are
present within the limits of the sovereign prescribing such rules, and to none
other; and that a certain set of persons are required to comply with only one set
of standards, and with none other. It is this perception, which having been
mutually recognized and accepted by most sovereigns gives the requisite
strength and legitimacy to each sovereign to enforce its legal rules within its
territory. However, the case with the cyber world is different as it admits of no
territory or polity based borders sufficient to impose a certain set of rules to a
certain territorially defined set of persons.
This leads each cyber actor to act according to his own legal order (or perhaps
no legal order at all), leading to blatant violations of what may be guaranteed
rights under other legal regimes. Litigation involving the internet has thus
increased as the internet has developed and expanded.6
4 Johnson, David R. and Post, David G. “Law & Borders—The Rise of Law in Cyberspace’’ (1996) 48 Stanford Law Review 1367.5 Ibid.6 Supra note 1.
PERSONAL JURISDICTION
The principle of lex fori is applicable with full force in all mattes of procedure.
No rule of procedure of foreign law is recognised. It was held in Ramanathan
Chettier v Soma Sunderam Chettier7 that India accepts the well-established
principle of private international law that the law of the forum in which the legal
proceedings are instituted governs all matters of procedure.
In India, the law of personal jurisdiction is governed by the Code of Civil
Procedure 1908 (the Code). The Code does not lay any separate set of rules for
jurisdiction in case of international private disputes.8 It incorporates specific
provisions for meeting the requirements of serving the procedure beyond
territorial limits. In matter of jurisdiction what is treated differently is the
question of subject-matter competence and not of territorial competence, i.e. the
question of territorial jurisdiction arises in the same way in an international
private dispute as in a domestic dispute.
The court provides general provisions regarding jurisdiction on the basis of
pecuniary limit, subject matter and territory. Sections 16 to 20 of the Code
regulate the issue of territorial jurisdiction for institution of suits.9
Rules as to the nature of suit
Based on the subject-matter suits are divided into three classes:
(1) suits in respect of immovable property;
(2) suits for torts to persons or movable property; and
7 AIR 1964, Madras 527.8 See ss.9 and 15 of the Code of Civil Procedure 1908.9 Supra note 1.
(3) suits of any other kind.
Suits of immovable property must be filed within the local limits of whose
jurisdiction the property situated.10 The Code therefore incorporates the
principle of lex situs and therefore the property in this section may refer to only
property ‘‘situated in India’’.
Suits for wrongs to persons and movable property may be instituted in the
courts within whose local limits the wrong is done or the defendant resides or
carries on business or personally works of gain.11 Suits of any other kind are
dealt with under s.20 of the Code which is the ‘‘default rule’’ providing for all
others cases not covered by any of the foregoing rules. Under s.20, a court can
exercise jurisdiction in actions involving persons where:
(a) the defendant, or each of the defendants where there are more than one, at
the time of the commencement of the suit, actually and voluntarily resides, or
carries on business, or personally works for work; or
(b) any of the defendants, where there are more than one, at the time of
commencement of the suit actually and voluntarily resides, or carries on
business, or personally works for gain, provided that in such case with the leave
of the court has been obtained or the defendants who do not reside or carry on
business, or personally work for gain, as aforesaid, acquiesce in such institution;
or
(c) the cause of section wholly or partly arises.
Rules enforcing ‘‘agreement of parties’’
10 The Code ss.16 and 17.11 The Code s.19.
It is well-established law in India that where more than one court has
jurisdiction in a certain matter, an agreement between the parties to confer
jurisdiction only on one to the exclusion of the other(s) is valid.12 The Indian
law therefore recognises and gives effect to the principle of party autonomy.
However, this extent of autonomy does not travel far enough so as to confer
jurisdiction on a court which it inherently lacks.13
Thus the position of law on the point is that first, a choice of law agreement is
permissible; and secondly, the agreement operates only in respect of a court
which does not otherwise inherently lack jurisdiction. In any such case, the
courts also consider the balance of convenience and interests of justice while
deciding for the forum.14
Thus, in India, the principle is well settled that residence in the territorial limits
of a court furnishes a ground for exercise of jurisdiction. Similarly, conduct of
business by a defendant in a forum also gives to the forum court to exercise
jurisdiction, irrespective of his non-presence within the jurisdiction. The Indian
courts also assume adjudicative jurisdiction on the basis of the territorial nexus
with the cause of action. In this regard, the consistent view of the courts in India
is that the courts are empowered to pass judgments even against non-resident
foreigners, if the cause of action arises in whole or part within the territorial
limits of the court.15 The Code also provides for rules and procedure for
international service of the processes of the court. However, since the courts in
India do not assume jurisdiction, unlike in England, on the basis of service of
writ, these provisions are of not much consequence to issues of jurisdiction.
Personal jurisdiction in cyberspace12 Hakkam Singh vGammon (India) Ltd AIR 1971SC 740.13 GM, ONGC, Sibsagam v M/s Raj. Engineering Corp AIR 1987 Cal.165.14 Union of India v Navigation Maritime Bulgare AIR 1973 Cal.526.15 R. Blainpain and B. Verschraegev (eds), “International Encyclopedia of Laws: Private International Law” ,The Hague: Kluwer Law International, 2005.
Unfortunately, only a very few cases concerning personal jurisdiction in
cyberspace have been decided by the superior courts in India. The reason
perhaps is that residents in India have not yet accepted or adapted themselves to
this new technology as a fit mechanism to undertake legal obligations (coupled
with an extremely slow justice delivery system).
The approach adopted is similar to the ‘‘minimum contacts’’ approach of the
United States coupled with the compliance of the proximity test of the Code.16
Considering the present rules of international jurisdiction and the tendency of
the Indian courts to ‘‘suitably modify’’, the existing domestic rules to
international situations in other areas of private international law may be
analysed. The reaction of the court would much depend on whether the contract
contained a choice of court clause or not.
Case I: where the contract contains a choice of court clause.
In such a case, the Indian courts would normally give effect to such a clause
subject only to a survey of forum non conveniens particularly when the same
would result in foreclosure of its own jurisdiction.
Case II: where the contract does not stipulate an agreed forum.
In a case of this sort, the Indian courts would be inclined to apply the test of
s.20 CPC since none of the other provisions seem to be of much assistance. The
court would make a twin inquiry: place of habitual residence of the defendant
and proximity of the cause of action to the forum, where even an ‘‘in part’’
cause of action may furnish sufficient basis to exercise jurisdiction. Thus the
Code provides for the tests of both objectivity and proximity to base its
jurisdiction.
16 (India TV) Independent News Service Pvt Ltd v India Broadcast Live, LLC CS (OS) No.102/2007.
While the legal system favours exercise of jurisdiction on the basis of proximity
of cause of action, its exercise based on the residence of the defendant is also
accepted for three reasons:
(1) ease of enforcement;
(2) compliance with audi alteram partem; and
(3) the (draconian) law of contempt of courts in India (as in most other common
law countries).17
For the purpose of determining whether the cause of action arose in the local
limits of a court, the courts generally go into the question of place of conclusion
of the contract. However, it seems that the place of conclusion of contract
would not be of much assistance in case of an e-contract. There would be an
insoluble confusion between the rules governing completion of communication
of offer, acceptance and revocation. The rule in the Bhagwan Dass case18 would
neither apply nor lend much support in reaching a reasonable solution in
contracts entered into through the internet.
Thus the Indian position as may also be inferred from the trend of the Indian
courts may be summarised as follows:
An Indian court would not decline jurisdiction merely on the ground that the
international contract in entered through the internet. It examines the two bases
of jurisdiction: domicile of the defendant and proximity to cause of action. Even
if one is found to be satisfied, the Indian court it seems would assume
jurisdiction. However, it would be for the plaintiff to prima facie also convince
that the courts elsewhere do not have a better basis of jurisdiction since the
Indian courts in such a case may also feel tempted to analyse the issue of 17 Supra note 1.18 Bhagwan Dass Govardhan Dass Kedia v Purshottam Dass & Co AIR 1966 SC 543.
jurisdiction from the stand point of the doctrine of forum non conveniens as also
anti-suit injunctions and thus decline to exercise jurisdiction even where there
existed legal basis to do so.19
JURISDICTION UNDER INFORMATION TECHNOLOGY
ACT 2000
The Act talks about the widest jurisdiction power. It aims to bring within the
jurisdiction of Indian court any act which is an offence under the Act. Section
1(2) of the Act states that:
“It shall extend to the whole of India and, save as otherwise provided in this
Act, it applies also to any offence or contravention there under committed
outside India by any person.”
Also S. 75 of the Act is widely defined and it extends jurisdiction to any offence
or contravention committed outside India by any person. The Section 75 of the
Information Technology Act 2000 reads as follows:
(1) Subject to the provisions of sub-section (2), the provisions of this Act shall
apply also to any offence or contravention committed outside India by any
person irrespective of his nationality.
(2) For the purposes 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 the offence or contravention involves a computer, computer system
or computer network located in India.
19 Supra note 16.
Section 75 of the Information Technology Act, 2000 deals with extraterritorial
application of the law, the section states that the provisions of the Act will apply
to
(a)Any person irrespective of nationality
(b)An offence or contravention committed outside India
The said offence or contravention must have been committed against a
computer, computer system or computer network located in India. The Act has
therefore adopted the principal of universal jurisdiction to cover both cyber
contraventions and cyber offences. It is important to note that the universal
jurisdiction over specified offences is often a result of universal condemnation
of those activities, and requires co-operation to suppress them, as reflected in
widely accepted Cyber Crime Convention.
ANALYSIS OF ARTICLE 22 OF THE CONVENTION ON
CYBERCRIME
The Convention on Cybercrime was opened for signature in Budapest,
November 23, 2001 and entered into force in 2004. Jurisdiction issues were
addressed by this Convention. However, some weaknesses prevent this
Convention from being more effective in making international cooperation the
solution for cybercrime. As an additional problem, cyber terrorism also became
a hazard the international community has to deal with.
No less than five different jurisdiction theories have been applied altogether by
courts and governments, all leading to the ascribing of jurisdiction to one court
and adversely affecting other courts’ jurisdiction.
An analysis of the several litterae of paragraph 1 of article 22 of the 2001
Budapest Convention on Cybercrime (hereafter “the Convention”) shows that
the Convention relies exclusively on the territoriality and nationality theories to
empower parties to establish jurisdiction.
According to litterae a to c, any offence established under articles 2 through 11
of the Convention that has occurred in the territory of one Party, in a ship flying
its flag or in an aircraft registered under its laws, is to be prosecuted in that
State. A Party is, therefore, asked by the Convention to assert territorial
jurisdiction if both the person attacking a computer system and the attacked
system are located within its territory. The same would be true when the
attacked computer system is within a Party’s territory, even if the attacker is in
another country.
Litterae b and c specifically require each Party to establish criminal jurisdiction
over offences committed on board of ships flying its flag or aircraft registered
under its laws. Already implemented in the laws of many States, this type of
jurisdiction assumption is most useful where the ship or aircraft is not located in
the Party's territory (or territorial waters/pace) at the time of the commission of
the crime.
Then, according to littera d, when one national of one State Party commits one
of the Convention-laid down offences in another State, the State of nationality
of the offender also has to establish jurisdiction provided, however, the target
State criminalises the said offence or the offence was committed outside
territorial jurisdiction, of any State, v.g. in the High Seas.
Paragraph 4 of the Convention further allows Parties to establish jurisdiction in
conformity with their domestic law, which enlarges the base for jurisdiction
should a State Party so desire.
CONCLUSION
The lack of any appropriate legislation has been felt time and again. Cases of
cyber frauds are regularly reported from different parts of the country, the most
significant chunk being the various Ponzi Schemes which operate stepwise. In
the first step people find mails in their inbox which informs them that they have
won some lottery or prize, etc from some unknown sender who claims
himself/herself to be some authority representing some organization but the
condition to obtain the prize money is that the receiver of the mail is asked to
pay certain amounts as part of the procedural requirements which is to be
deposited through bank transfers. In the next step they are showed some fake
award certificates and seals of some government bodies to make the whole
transaction look real. Also the promise of confidentiality about the whole
process, till it is complete, is taken from the receiver. Once a person falls to the
trap and deposits the money asked for neither the person nor his organization
can be found or traced.
Such cases have mostly been reported from the smaller cities where people tend
to get more attracted by such lucrative schemes. The law however is silent on
such cases as the fraudsters cannot be traced, not even one of culprits involved,
of the numerous incidents reported so far has been caught.
Executive takes the plea of lack of technologically advanced resources and even
if they succeed initially then there is no concrete law which can ensure that the
guilty would be caught irrespective of territorial borders. The law dealing with
cyber fraud is, however, not adequate to meet the precarious intentions of these
fraudsters and requires a rejuvenation in the light and context of the latest
developments all over the world. The laws of India have to take care of the
problems originating at the international level because the Internet, through
which these activities are carried out, recognises no boundaries. A country may
employ enforcement measures against a person located outside its territory on
the grounds of reasonable circumstances to press charges, opportunity to be
heard, courts having jurisdiction and principle of natural justice. So far no treaty
or global organizations have been able to formulate uniform policy acceptable
to the global forum.
The task of the inventors is to develop new technologies. On the other side,
there are criminals who use those technologies for commission of more advance
crimes. Legislatures, Executive and Judiciary are trying to control such crimes.
It is a circle, and in between, it is the society who suffers. Society suffers
sometimes with terror- as a new invention springs up, then with distrust- when
the invention is used for anti-social activities and then with the hope as the law
will catch holds the wrongdoers. As the wheels of justice become operational,
such unsociable activities though cannot be eradicated fully are forced to
reduce. To think that cybercrimes could be fully curbed- is fighting against
reality, against the inevitable, that it cannot by removed/curbed fully.
Legislators have taken a great step forward by enacting the IT Act 2000. Now
it’s a time for its proper implementation.
BIBLIOGRAPHY
Law Relating to Computers Internet and E Commerce by Nandan Kamath
Moore, R. (2005) "Cyber crime: Investigating High-Technology Computer Crime," Cleveland, Mississippi: Anderson Publishing.
Indian Laws on Internet by Ashok Srivastava An Introduction to Cyber Crime and Cyber Law by R.K
Chaubey. Sachdeva, “International Jurisdiction in Cyberspace” Johnson, David R. and Post, David G. “Law & Borders—The
Rise of Law in Cyberspace’’ www.lawinfo.net www.legalservicesofindia.com www.lawyerscourt.com