Jurisdictional Issues in Cyber Space
The term Jurisdiction means power and capacity. It is derived from two Latin words juris and dicere, juris means Law and dicere means speak. So, in totality Jurisdiction means what law speaks. The Hansbury’s Laws of England gave a negative though fantastic definition of the term Jurisdiction which is “If Jurisdiction is power, authority or capacity of the court it means that these powers are restricted, limited or prohibited by charter, commission, statutes.” Thus, we can say that Jurisdiction refers to the power to determine and hear a case, vested in an appropriate and competent Court of Law and that power is provided by any statutes, Act etc. And generally, Jurisdiction is decided by the territoriality or the locality in which the Court of Law is situated.
But when we talk about the Jurisdiction in cyber space then this concept become wider because the Internet knows no territory and is International in character, the sites which are processed and made in USA can be easily opened and used in any part, any nation-state of the world unless expressly barred by the Government of that particular State.
In this article I tried to enshrine a detailed and brief discussion about the Issues of Jurisdiction in Cyber-Space. The prime issue in the Cyberspace is of the determination of Jurisdiction of the Courts. As the Internet is international in character and can be access from any part of the world if not expressly barred, and in such cases, it is very difficult to decide the place of offence and thus leads to a complication in the Jurisdiction as well. And in order to resolve these issues, certain principles and tests are evolved and are discussed in the upcoming part of this document.
Jurisdiction in International Law
If we talk about, the Jurisdiction in International, sometimes called as Extra- Territorial Jurisdiction. Then this Jurisdiction has been propounded, enunciated and established by certain Theories or Principles. There are three pre-requisites of the Jurisdiction which are as follows:
Prescriptive Jurisdiction: It refers to the power of a State to regulate its people, property and transactions or to prescribe their conduct, usually through passage of laws or regulations. A state has unlimited prescriptive jurisdiction, this means that the legislature of the state can create, amend or repeal any legislation.
Enforcement Jurisdiction: It is the power of the Government of the State to compel compliance or to punish non-compliance with laws, regulations, orders and judgments. However, a state cannot enforce its laws over persons residing in another country. And this jurisdiction shall only apply only when there is jurisdiction to prescribe. And in very rare cases, a state may allow another state to However, enforce their laws in the lands of the former state without earlier consent.
Adjudicative Jurisdiction: It refers to the power of a state acting through its judicial organ, to hear disputes and to render judgments binding upon parties thereto. It is the power of a court to determine the rights and obligations of the party to a dispute and to exercise and judicial power in relation to. It is also a possibility that there is jurisdiction to prescribe but no jurisdiction to adjudicate.
But it was very difficult to assert the jurisdiction of one sovereign nation on another and thus in order to enforce the laws of one country in the lands of other country there are certain principles evolved by the International Community for furnishing better ways to render Justice. These principles are equally applies in physical world or in cyberspace. These principles are not mutually exclusive rather the courts routinely rely on more than one to establish the Jurisdiction.
Principles of Extra Territorial Jurisdiction
There are 5 principles of Extra Territorial Jurisdiction:
Territorial Nexus Principle:
This principle states that a State’s territory for jurisdictional purposed extends to its land and dependant territories, airspace, aircrafts, ships, territorial sea and, for limited purposes, to its contagious zones, continental shelf and exclusive economic zone. The principle as adopted by the National Courts is subject to national law, save only for those granted immunity under International Law.
This principle is further divided in two variants
Objective Territorial Principle: In this a state can exercise its jurisdiction over all the activities which are completely within its territory, provided that even if some elements constitution the crime or civil wrong too place elsewhere: and
Subjective Territorial Principle: It states that a State asserts its jurisdiction over matter commencing in its territory, even though the final even may have occurred elsewhere.
In the leading matter of SS lotus case (France v. Turkey); the Permanent Court of International Justice held that a state cannot exercise its jurisdiction, in any form, in the lands of another state unless an international treaty or customary law permits to do so.
It is totally on the state to determine under its law that who are its citizens. This principle states that a person of different national if committed any act in another nation, and if that act in punishable under the laws of that person’s country, then he will liable to go for trial in his country.
For example: In India, under IPC sec. 3, an Indian national is liable to prosecution in India for an offence committed in a foreign country which is punishable under Indian Law.
Passive Personality Principle:
This principle was propounded by United States of America. It is an extension of the Nationality Principle, and is to be applied against a national of a state, wherever that national be. It provides that a national of one state when make a visit to another country, takes with him the law of his land as a protection, and subject those who came in contact with him. This principle was perfectly elaborated by US Court in the case of United States v. Fawaj Yunis, where the court held that “This principle authorizes states to assert jurisdiction over offences committed against their citizens abroad. ‘It recognizes that each state has a legitimate interest in protection the safety of its citizens when they journey outside national territories.’ And because American Nationals were on board the Jordanian Aircrafts, the government contends that the court may exercise jurisdiction over Yunis under this Principle.”
A brief analysis of this principle led to some controversies as this principle allows one nation to extend their hands to another nation through the medium of laws. But nevertheless, the applicability of this principle was used in the circumstances of hostage takers etc.
In another case of United States of America v. Armando Benitez, there were two DEA agents of USA who journeyed to Colombia to participate in an operation named Tiburon. Then they were killed by a drug dealer namely Armando Benitez, the defendant and his men. Mr. Benitez was prosecuted for the offence of Murder in the District Court of Florida, USA. He contended that as the offence was committed on the lands of Colombia, the Colombian shall have the Jurisdiction and not the District Court of Florida. The American Court by applying the principle of Passive Personality established its Jurisdiction and held the defendant liable of the offence of murder of two DEA agents.
This principle enables a state to extend its jurisdiction in cases that the act of a person outside the countries boundaries country threatens the state security or interferes with the operation of its Government functions. The State shall rely on this principle when its national security or a matter of substantial or public interest is in issue.
During the period of World War II, an American citizen by fraudulent means gained a British passport and worked in German Radio. After sometime he was caught and prosecuted in the UK court. He contends that his act was done outside the territories of the Britain and he was not British national so UK court doesn’t have the Jurisdiction. But the court rejected this argument on basis of the Protective Principle and convicted the accused.
This principle has quite vast scope. The purpose for incorporating this principle is to ensure that no offence shall go unpunished. A state has jurisdiction to define and prescribe punishment for certain group of offences which are recognized by the Community of Nations as of universal concern. A Universal Principle empowers the State to assert jurisdiction irrespective of fact that who committed the act and where it occurred.
Some examples of such acts are like acts of terrorism, attacks on or hijacking of aircrafts, genocide etc.
We may remember the decade of 1980s, escaping the first year of that decade and focusing on the later part of the decade, when General Efrain Rios Montt became the dictator of Guatemala, the period that popularly known as Silent Holocaust, when Montt launched a “scorched earth” operation and killed over 200,000 people of Mayan Ixil Community. And when in 1999 Nobel Peace Prize winner Rigoberta Menchú filed a case against Montt in the Spanish Court, and the Court by apllying the Universality principle held Gen. Montt liable for the offence of Genocide on the land of Guatemala. The name of the case was Menchú Tumn (Rigoberta) and ors v. Two Guatemalan Government Officials and Six members of the Guatemalan Military.
The above principles were propounded before the arrival of Internet in this world, but when the internet was introduced there were so many intricacies aroused and it was become more difficult to determine the Jurisdiction of the Country in matters which are committed outside the territories of that country. And for that purpose, a concept of Personal Jurisdiction in Cyberspace was propounded.
Personal Jurisdiction in Cyber-Space
As I earlier said Internet is International in character, so a single internet transaction may involve laws of the State in which the user resides or the laws of the State that apply where the server hosting the transaction is located or the laws of the State which apply to the person with whom the transaction takes place. For the better understanding of above let us take an imaginary situation that is a user of India conducting a transaction with another user in Australia through a server hosted in Indonesia wherein issues arose, they would theoretically be subject matter to the laws of all the three nation states.
In general circumstances Jurisdiction lies where the cause of action arose, but it will become dramatically difficult when there are multiple parties involve.
So personal jurisdiction is the competence of court to determine a case against particular category of persons. In physical world it is easy to determine to place where crime has been committed but when it comes to Cyberspace the question of determining the place of offence and thus to determine the Jurisdiction of Court become very difficult.
And in order to resolve the above problem certain principles were laid down by the International Community, to determine the jurisdiction.
Those principles are as follows:
The principle of ‘Long Arm Statute’ empowers the State to exercise its personal jurisdiction over a non-resident defendant who has certain contacts with the state. This practice was developed by United States over a long period of time.
For example, the long arm statute of New York gives its courts the power to exercise a jurisdiction over non-New York residents who; transact business within New York or committed tort (other than defamation) within New York, or committed tort (other than defamation) outside New York which injured persons or property located within New York, or own, use, or possess any real property situated within New York.
Even IPC and IT Law have extra territorial jurisdiction which work as long-arm statute, but is difficult to apply.
Minimum Contact Test:
This principle was established in the case of International Shoe Co. v. State of Washington, where it was held that a court’s personal jurisdiction over a non-resident defendant can apply if the defendant has maintained certain minimum contact with the forum state. It carved three criteria for establishing minimum contact:
The defendant must “purposeful avail” himself of the privilege of doing business in forum state;
The cause of action arises from defendant’s activities in the forum state; and
The exercise of Jurisdiction shall be reasonable and fair.
This ‘minimum contact” test laid down the foundation of a State’s jurisdiction over the other State’s subject.
The term purposeful avail means a purposeful and successful solicitation of business from forum state residents, establishment of contract with the state residents, associated with other state related activity, and substantial enough connection with the state.
It is to be noted that this case for the first time established that the personal jurisdiction might exist even though the defendant had no physical presence in the forum state.
This test was propounded in the case of Calder v Jones, it was held that the due process requirements of the “minimum contact” may be satisfied on the basis of “effects” that the conduct out of state has in the forum state. In this case there was a magazine printed and published in Florida. An article saying something defamatory about a citizen of California was published. The Californian citizen filed a case against the writer of that article, the defendant than contends that the magazine is of Florida is published in Florida and sold in Florida itself then the Californian Court have no Jurisdiction to entertain this case.
The Court rejected the contention and held that as the magazine was also available in the State of California and causes an effect to the Californian citizen. Thus, we have the jurisdiction to entertain this case. And the court then propounded the Effect Test.
Similarly, in the case of Banyan Tree Holding Ltd. v. A. Murali Krishna Reddy, the Delhi High Court by applying the “effect test” held that as the similar word mark was used by the defendant and advertise on the same website as where the original company was doing their advertisement, shall have put some effect on the marketing of the original owner of that word mark, held the defendant liable.
Also, in the case of Nirmaljit Singh Narula v. Indijobs at Hubpages.Com & ors, there was a website of the defendant which publishes articles; the server of this webpage was in USA. In this webpage a defamatory comment was published against the Plaintiff, he filed a suit in the Delhi High Court. The Defendant argued on that the Jurisdiction of the court is not maintainable. The Court by applying the effect test held that the effect of that felt in India so the Delhi HC can have the Jurisdiction.
General and Specific Jurisdiction:
The General and Specific Jurisdiction are termed are the offspring of the Minimum Contact and Effect Test. The General Jurisdiction requires direct and substantial connection with the defendant. It relied upon the very close contacts of the person with the state such as, residency or domicile within the state, physical presence in the state at the time of service of process, or some other substantial “continuous and systematic” contact with the forum state.
Whereas the Specific Jurisdiction of the Court empowers the court to establish jurisdiction with respect to a particular cause of action based upon some set of “minimum contacts” with the forum state that relate to that cause of action.
For example, if a Florida orange grower were to breach a promise to deliver a bushel of oranges to a buyer in Alabama, the breach of that agreement would be sufficient for Alabama courts to assert Specific Jurisdiction, even if the Florida grower have no contacts with Alabama, or never even set foot there. The lone contact of a promise to deliver something to a state is enough to give the State Jurisdiction over the disputes of breach of promise. But it should be kept in mind that mere presence of a contract is not enough to establish specific jurisdiction – Burger King Corp. v. Rudzewicz —something else is needed, maybe if there had been subsequent deliveries. And if one wanted to sue the Orange grower in Alabama on grounds other than contract, then the court tries to establish General Personal Jurisdiction.
Sliding Scale Test:
This test was propounded in the case of Zippo Manufacturing Co. v. Zippo Dot Com, Incorporation; the issue of personal jurisdiction arises in the context of trademark dilution, infringement and false designation under the Federal Trademark Act.
There was a renowned company named Zippo Manufacturing Co., and is known for “Zippo” tobacco lighters and was established in Pennsylvania. Zippo was the trademark used by this Company. Another company was newly registered and worked in the California with a name of Zippo Dot Com, Inc, providing free and paid news services. The Zippo manufacturing filed a suit against the Zippo Dot Com in the Court of Pennsylvania, the Incorporation contends the basis of Jurisdiction, the Court held that as the Incorporation had 1,40,000 paid customers out of which 2% i.e., 3,000 were Pennsylvania residents, and the incorporation has also contracted with other internet service providers in the locality of Pennsylvania. The Court held that this level of contact shall lie within the purview of Specific Personal Jurisdiction. And also gave the “Sliding Scale Test”.
This Test talks about three types of website and says that according to the website type the jurisdiction shall be established. The Three types of websites are:
Passive Website: These kinds of websites are those in which one can only see information, and these kinds of websites makes not interaction with the party. For example: News websites etc.
The Court shall have no personal Jurisdiction in this kind of website.
Active Website: In this website, the make interaction with the parties and also do transaction with the users. For example: Shopping website etc.
The Court shall establish personal jurisdiction if issue is related to active website.
Interactive Website: These kind of website offers interaction and connection with the users. For example: Social Media, YouTube etc.
The Court can establish personal Jurisdiction but after determining the level of interaction.
NOTE: In the Sliding scale test the first two classifications of websites and establishment of Jurisdiction was quite okay. But the last classification of Interactive Website and the provision of “level of interaction” created some sort of problem in determining the cases as there were no reference point from where one should evaluate the “level of interaction”, thus now this rule is not in picture and is not been followed.
Thus, from the above theories and test we have seen that how the International community has evolved from the physical world to the era of Internet and Technology. And how the concept of Personal Jurisdiction has been enunciated in order to tackle the jurisdictional issues aroused because of the Introduction of Internet.
From the detailed discussion of the Jurisdictional Issues in the Cyberspace, we can conclude that these rules from the aspect of physical world and test from the era of cyberspace are based on some sort of understanding between the civilized nations of this world. They have after a long debates and discussions evolved certain test and rules because the Internet knows no boundaries and if that is so then issues which relates to internet will not be resolved and the aim of the Judiciary will be defeated. These rules are although applicable only when there is certain reciprocating relationship between the states. The only convention regarding this issue was held in 2001 and was known as Convention on Cybercrime.
The internet is growing day by day, so it is the need of hour that we should grow with it, or else we will not able to tackle the news technological crimes with traditional methods. And in its furtherance the cooperation of the nations is the main criteria to be fulfilled by the States across the globe. And a good or up to the mark solution is, to make a body at international level which shall separately deal with the Cybercrime and shall follow the rules of UNCITRAL for effective functioning.
The central focus with regards to cyber law is that to find a method that is innovative and novel enough to not alter all of our legal systems but also ensure that it is able to adapt the technology that comes our way.
B.A. LL.B. (Hons.)
Banaras Hindu University