This Article is written by Yamini Pokhriyal (pursuing LLB from Bharati Vidyapeeth University)
Cyberspace, in general, refers to the virtual reality or world that revolves around the computer network. It is a domain that cannot be defined geographically but acts as an interconnection between humans and computers. It creates a virtual environment for its users and facilitates online communication, data storage, information gathering, and many other facilities which make our life simpler and easy. Besides all these facilities that humans can avail themselves of from the use of the internet, there is a dark side of humans that leads to the misuse of this incredible internet technology, and there the birth of cybercrimes takes place. It is very difficult to determine the jurisdictional spheres of cyberspace as there are no well-defined boundaries that make any jurisdiction clear. It becomes more difficult when there is an involvement of multiple parties who are placed in different parts of the world, having only a virtual connection. The article mainly focuses on jurisdictional issues relating to cyberspace and the applicable laws worldwide. The article highlights the Intellectual Property Right (IPR) disputes with respect to their jurisdictional issues.
KEYWORDS: cyberspace, jurisdiction, computer network, communication, security
JURISDICTION IN CYBERSPACE
Jurisdiction means the power of the court to proceed with the case. This power is divided among the courts on the basis of their geographical boundaries. Cyberspace has no physical boundaries but the users of the internet reside in different parts of the world. The offences related to the misuse of cyberspace generally involve three parties – the user, the server host, and the person with whom the transaction is taking place. Since there is an involvement of several parties it becomes difficult to point out to a certain area of criminal jurisdiction. In cases of such illegal computer crimes there arise the following questions: the first question is, in which country the crime is committed or the country responsible for the crime. The second question is in which court of the country the jurisdiction of the crime will fall. There is no specific legal framework for this but the reliance can be placed on various judicial pronouncements of the countries having a well-developed concept of ‘Internet Jurisdiction’.
JURISDICTION IN INTERNATIONAL LAW
In context to International laws, the territoriality of cyberspace can be addressed with respect to the server location, where the web page is physically located. These disputes may be of diverse origin and usually threatens the national security of the states wherever they are committed and thus falls under the category of International Jurisdictional disputes. The USA recognizes only two forms of personal jurisdiction i.e. General Jurisdiction and Specific Jurisdiction.
The types of jurisdiction recognized in international law are:
It is the primary jurisdiction under which the state can make laws applicable to persons, activities, relations, and to certain circumstances. In the famous LOTUS case, it was held that the states are free to exercise prescriptive jurisdiction unless a rule prohibitive to the contrary is identified.
Jurisdiction to enforce:
In cases of non-compliance with the established rules and regulations, this jurisdiction empowers the state to urge or to punish the real offenders.
Jurisdiction to adjudicate:
A sufficient nexus between the state and the person is required to adjudicate this jurisdiction. This involves the power of the state to subject a person or a thing to a court or a tribunal.
THE BUDAPEST CONVENTION
This was the first international treaty to discuss cybercrimes in consideration of national laws and cooperation between the nations. The Budapest Convention on cybercrimes was also known as Convention on Cybercrime, 2001, and was opened on 23rd November 2001 for signatures. The crimes deal with the offences such as computer-related fraud, child pornography, and infringement of copyrights, etc. The treaty was signed with the aim of promoting the protection of society against cybercrimes by adopting appropriate legislation and fostering international cooperation. India was not a signatory to this convention on cybercrimes and still maintains its status as a non-member to this convention.
MINIMUM CONTACT THEORY
The theory illustrates the jurisdiction issues in cases where both the parties to the dispute seem to be from outside the territorial jurisdiction of the court. The given theory was laid down in the famous case of International Shoe Co. v. Washington.It is a two-part test where the plaintiff had to show that he had sufficient minimum contact with the defendant in the forum state. In the given case, the test was performed to protect the defendant from the burden of litigating in such an inconvenient forum. It was one of the landmark judgments given by the Supreme Court of the United States. It was held by the Supreme that a minimum contact is required between an individual and a forum state to institute a suit against an individual.
SLIDING SCALE THEORY
The “Sliding scale theory” or “Zippo test” was laid down in the famous case of Zippos Mfg. Co. v. Zippo Dot Com, Inc.This test classifies the website as passive, interactive, and integral to the defendant’s business. The test has been accepted as the standard in federal courts in matters of personal jurisdiction over the internet. The court in this case had observed that personal jurisdiction is directly proportional to the nature and quality of the commercial activity conducted over the internet by the entity and the same has been compressed by the court to a ‘sliding scale’.
The other tests to determine jurisdiction over cyberspace are Effects test or Calder Effect Test; Personal Jurisdiction Theory; Choice of law theory; Country-of-origin or Country of destination theory; Forum Selection Theory. These theories are considered while determining the jurisdictional spheres of cyberspace. In the pre-internet period, it was comparatively easier to determine the jurisdiction of the disputes. Cybercrimes are very easy to commit due to their limitless boundaries and there arises a need for a separate law to deal with such crimes.
 Permanent Court of International Justice, P.C.I.J.(ser. A) No. 10 (1927)
326 U.S. 310 (1945)
952 F. Supp. 1119 (W.D. Pa. 1997).