Background about how jurisdiction is a problem on internet
The Internet's transnational nature has resulted in unparalleled social,
economic, and political opportunities for humanity. At the same time, it raises
contradictions within an international legal order founded on the concept of
territorial integrity established by the Treaty of Westphalia in the seventeenth
century. Transnational connections have become ubiquitous thanks to the
Internet. As a result, traditional forms of interstate collaboration fail to
keep up with the digital complexities of the twenty-first century.
controversies and violations pose an unparalleled threat to the territorially
bound international legal system, ranging from instances of offensive
information to cross-border access to consumer data. The Internet's
technological infrastructure was designed from the start to be trans border and
non-territorial, a feature that is widely regarded as beneficial. However, since
internationally available content and services may be lawful in one nation but
unlawful or even criminal in another, ubiquity has exacerbated tensions.
As a result, determining relevant rules, allowing for their compliance, and
establishing remedy procedures in cases of trans border cybercrime or illegal
online behavior becomes more complex.
As Internet penetration reaches four billion users from over 190 nations, each
with its own set of rules, traditions, and social sensitivities, tensions will
continue to rise.
Governments, Internet platforms, technical operators, civil society
associations, and foreign organizations, as well as ordinary people, are all
concerned about the current situation.
The realpolitik of Internet regulation is becoming digital sovereignty. There
are several examples of national regimes being extended beyond their borders:
for example, governments with Internet portals or technological providers
incorporated on their soil may enforce their national laws and regulations on
these private actors, with clear transboundary consequences for all
international users of these services.
Litigation also plays a significant role in establishing new global rules, with
de facto consequences that extend well beyond the jurisdictions involved. While
the freedom to be de-indexed was first developed in Europe for Google, it is now
used by other search engines such as Microsoft Bing and Yahoo Search, and has
had repercussions in Asia, Latin America, and Canada. As a result, local court
rulings have the potential to set new international standards for state-Internet
States are incentivized to erect sovereign boundaries on the Internet in order
to establish the rule of law and defend civilians online.
Analysis And Justification As To Jurisdiction On Internet Being An Important
Limit To Corporation On International
Managing trans border online environments present structural challenges for the
current diplomatic system; existing legal interoperability processes often fail
to diffuse uncertainty and resolve conflict.
Multilateral efforts - Only a small number of people support the concept of a
democratic, all-encompassing Internet compact that would harmonize applicable
laws and address the broad spectrum of cyber-cooperation concerns. Furthermore,
treaty talks are infamous for taking a long time.
Also the most comprehensive deal to date to combat cybercrime, the Budapest
Convention, took more than a decade to put on the agenda: if substantive talks
took "just" four years, putting the issue on the agenda took more than a decade.
Ultimately, despite the fact that the Convention was ratified by more than 50
countries around the world (with the exception of a few major countries such as
India and Brazil), some countries use the fact that it was first drafted within
the Council of Europe as a justification against entering a regime in the
drafting of which they were not involved.
Many valuable statements at the level of general principles have been
established within multilateral organizations in recent years, demonstrating
some degree of convergence.
In the past, bilateral mutual legal assistance treaties (MLATs)
allowing government-to-government legal cooperation were signed to deal with
serious and unusual cross-border criminal proceedings.
Direct appeals from the public to the private sector - In the absence of
effective and sufficient mechanisms for international collaboration, governments
are rapidly submitting requests directly to private actors in other
jurisdictions, such as Internet portals, hosting providers, registrars, and
Jurisdiction In India
When it comes to determining jurisdiction in the world of cyberspace, it becomes
a difficult aspect of law. Jurisdiction is the right or competence of the court
to hear and decide the cause and adjudicate upon the matter that is litigated
before it, or the The court's authority to take cognizance of the case before
it. Information Technology Act 2003
The Section 1 of the Act defines the scope of its operation. (2) It shall extend
to the whole of India and, except as otherwise specified in this Act, it shall
apply also to any offence or contravention thereof committed beyond India by any
Section 75 of the Act deals with the rules that relate to crimes or violations
committed outside of India.
It states that Pursuant to subsection (2), the provisions of this act shall
extend to any offence or contravention committed outside India by any citizen,
regardless of nationality.
This act shall refer to an offence or contravention for the purposes of
Apart from the Information Technology Act of 2000, there is other applicable
legislation under Indian law that grants India courts the power to adjudicate
matters relating to cybercrime, such as:
Evidences / cases where jurisdiction was considered as issue Indian and
SMC Pneumatics Vs. Jogesh Kwatra
- The extraterritorial jurisdiction of Indian courts is also addressed in sections
3 and 4 of the Indian penal code of 1882.
- Section 188 of the CrPC 1973 states that an offence committed by an
Indian resident outside the country is liable to the jurisdiction of Indian
- The Budapest Convention on Cybercrime, also known as the Convention on
Cybercrime, was the first international treaty to address the Internet and
cybercrime by taking into account national legislation, increasing international
coordination, and developing investigative techniques.
- The Council of Europe, Canada, Japan, the Philippines, South Africa, and the
United States all signed it in Strasbourg, France. Countries such as India and
Brazil, on the other hand, have refused to follow the Convention because they
were not involved in its drafting. However, due to an increase in cybercrime,
India has been reconsidering its position on the convention since 2018.
- Article 22 of the 2001 Convention on Cyber Crime grants authority to a
government where a cyber crime is committed
In its own country;
On board a ship flying the country's flag;
On board a plane that is legally licensed in the world
Whether the crime is illegal by penal law in the country where it was done, or
if the offence is committed outside of the country, it may be committed by one
of the countries' nationals.
In November 2000, the United Nations General Assembly passed a resolution
approving his treaty. India, as a signatory, became a member in 2002. The
Palermo Convention, also known as the UNTOC, requires state parties to pass
domestic criminal offences that target organised criminal gangs, as well as new
mechanisms for extradition, mutual legal aid, and law enforcement collaboration.
The Information Technology Act of 2000 was passed by the Indian Parliament in
response to this convention.
This is a lawsuit of cyber defamation. This is India's first case of its kind.
In this case, the defendant was an employee of the plaintiff's company who used
to deliver insulting, pornographic, vulgar, and offensive emails to his bosses
as well as to the company's various subsidiaries around the world. The aim of
sending those emails was to smear the company's name.
The Delhi High Court has taken jurisdiction over a case of corporate image
defamation via e-mails. The court ordered an ex-parte injunction.
SIL Import Vs.. Exim Aides Silk Importers
In this case, the court successfully demonstrated the need for judicial review
of the law in light of recent technical advancements. Unless there is explicit
laws governing the jurisdiction of Indian courts over Internet disputes, or
unless India is a signatory to an international treaty establishing the
jurisdiction of national courts over Internet disputes,
Sliding Scale Test And Its Case Laws:
In Zippo Mfg. Co. v. Zippo . Com,
Inc.46, an expansion of the purposeful availment test was attempted. The appellant, Zippo Manufacturing, was a
cigarette lighter manufacturer based in Pennsylvania.
The defendant was a California company that operated an online news service and
a website. It just had a presence in California. Viewers from other states had
to go to the defendant's website to sign up for the defendant's news service by
filling out an online form. submit an application Payment was done via credit
card over the phone or over the internet.
Pennsylvania citizens made up about 3000 of the defendant's customers, who
registered up for the programme by visiting the defendant's website and filling
out an online application. Furthermore, the defendant had made agreements with
seven Pennsylvania internet providers to securely connect to the defendant's
news service to their subscribers..
In addition, the defendant had made arrangements with seven Pennsylvania
internet service providers to allow their customers to access the defendant's
news service. In a Pennsylvania court, the defendant was accused of patent
dilution, misuse, and false designation.
The Constitutional limits on the exercise of personal jurisdiction vary based on
whether a judge claims general or special jurisdiction over a non-resident
defendant , according to the District Court.
Where a non-resident defendant engages in "systematic and persistent" practises
in the forum state, a court can exercises personal jurisdiction over the
defendant for non-forum State
The Zippo court went on to say that there is already a three-part test for
deciding if it is reasonable to exert clear personal authority over a
non-resident defendant: (1) the defendant must have a sufficient number of
"minimum contacts" with the forum state, (2) the argument made against the
defendant must derive from such contacts, and (3) the exercise of jurisdiction
must be fair.
Websites is listed as:
- interactive, and
- integral to the defendant's company by the court in Zippo.
The defendant's website was found to
be interactive based on the evidence.
As a result, the court was found to have jurisdiction to hear the case.
In terms of the sliding scale test,
The claim of a court's authority was contingent on the degree of
interactivity and economic existence of the transaction.
As a result of using the website, there has been an exchange of information. The
courts have been ruling in favor of
It's difficult to figure out what level of interactivity is required for
authority to be established.
Millennium Enterprise L.P. v. Millennium Music Inc.
A South Carolina company that distributed goods both offline and online was
denied jurisdiction by an Oregon district court. The court believed that
'something more' was needed than just demonstrating that the website was
interactive. a requirement The Defendant should be able to prove that he or she
completed a trade in Oregon. as well as having made "deliberate and frequent
communications" with Oregon via the website in order to establish that they
should have expected to be hauled before an Oregon court.
In the case of People Solutions v. People Solutions,
A total of 53 people were involved. Despite the fact that consumers accessing
the defendant's website could download content, receive product brochures, and
place orders online, the court declined to exercise jurisdiction because the
complainant failed to prove that the defendant had sold its goods or contracted
for services with someone in the forum state through the website.
AAAA Development v. Mink
, Despite the fact that the defendant's website
contained printable mail-in order forms, a toll-free number, a mailing address,
and an e-mail address,
Despite the fact that no orders were placed using the website , the forum court
failed to exercise jurisdiction.
Effects Test And its Case Laws
As a result, the courts have stepped away from a subjective territoriality
to a measure of "objective territoriality" or "effects," in which the forum
court would have jurisdiction if It has been shown that the defendant's website
has an effect on the forum state. To put it another way, it must have caused the
complainant any hurt or damage within the jurisdiction of the forum state Calder v. Jones
was the first case to use the effects
The complainant was a California native who filed a libel suit against the
National Enquirer in a California court based on a report that was written and
distributed in the state. However for the Enquirer and its nearby distributing
firm, the article's publisher and author were all in Florida.
Supreme Court held The supposedly libellous article was about a California
resident's actions in the state. It questioned the professionalism of an
entertainer with a California-based television career. this article drawn from
California bore the brunt of the harm, both in terms of respondent's emotional
pain and the damage to her professional reputation. In conclusion, California is
the story's and the damage' suffered . Petitioners' jurisdiction As a result,
based on the effects
of their Florida behaviour in California, is proper.
On the evidence, it was held that the author and publisher 'expressly pointed'
their tortuous conduct at California, that they knew the report would have a
detrimental effect on the respondent, and that they should have fairly expected
the brunt of the injury to be suffered by the complainant in the state where she
lived and operated.
The court goes on to say that the petitioners aren't being charged with simple
negligence. Rather, their deliberate and ostensibly tortuous acts were
specifically targeted at California.
Petitioner South wrote an essay, and petitioner Calder edited it, knowing that
it would have a potentially damaging effect on respondent. And they knew that
respondent would bear the brunt of the damage.
Digital Equipment Corp. vs. Alta Vista Technology
The appellant, a Massachusetts corporation, filed a lawsuit against its
licensee, claiming trademark infringement. Despite the defendant's claims, that
it had arranged its affairs in such a way as to escape the forum state however
Court held The defendant's use of its website to infringe on the plaintiff's
mark had effect in the forum state, and its intent may be said to be attacking
the forum state and its people.
In order to determine whether the forum court has authority in a dispute
alleging patent violations by the use of the internet, the courts in the United
States have recently introduced a mixture of the Zippo "sliding scale" test and
the Calder "effects" test.
The Internet & Jurisdiction Policy Network And Its Mission
The Internet & Jurisdiction Policy Network, or "I&J Policy Network," "Internet &
Jurisdiction," or simply "I&J," is a multi - stakeholder association that
promotes legal compatibility in cyberspace.
Its Secretariat enables transnational coordination and policy coherence by
facilitating a global policy dialogue involving key stakeholders. The Policy
Network's members collaborate to safeguard the Internet's cross-border nature,
defend human rights, combat abuses, and empower the global digital economy.
The Economist, New York Times, Washington Post, Financial Times, Politico, and
Fortune have also reported the organization's mission, which has been introduced
to and accepted by important international processes such as the UN Internet
Governance Forum, the UN Secretary-High-Level General's Panel on Digital
Cooperation, the G7, G20, and the Paris Peace Forum.
Most web communications and data flows today are governed by different
jurisdictions depending on where customers, servers, internet networks, or
technological operators are located. Traditional forms of interstate legal
interaction are unable to keep up with the modern revolution. Increasing
pressures cause uncoordinated short-term responses in the absence of legislative
standards and adequate mechanisms.
As a result, the Internet & Jurisdiction Policy Network links related
stakeholder groups and crosses policy silos in a specific way. Its
ground-breaking approach aims to fill gap between governance in internet.
In order to resolve cross-border legal issues on the internet, 79 % of
stakeholders surveyed believe there is inadequate international cooperation and
Cross-border legal problems on the internet will become more acute in the next
three years, according to 95% of them.
Just 15% of them think we do have the best institutions in place to deal with
The rise in cyber crime has a negative impact on cyberspace, posing a threat to
national security. And if the appropriate safeguards and electronic security
steps are taken, history suggests that it is almost difficult to eliminate
violence from the virtual world.
Since cyberspace is a world with no boundaries, determining the jurisdiction of
a court to adjudicate on the matter is challenging. As a result, the need of the
hour is to create a specific rule that can be applicable to cases of cybercrime
without difficulty or doubt.
The recent cybercrime incident clearly demonstrates that India is still
vulnerable to cyber threats; thus, in order to resolve the problem, India should
become a signatory to the Budapest Convention and ratify it. By demonstrating
its global footprint, the nation would be better able to fight cybercrime and
resolve jurisdictional disputes.
Written By: Sparsh Dinkar Mishra
- Bertrand De La Chapelle & Paul Fehlinger Jurisdiction on the internet:
How to move beyond the legal arms race Observer Research Foundation (OCT 14
- Information Technology Act 2000, No. 21 , Act Of Parliament , 2000
- Kirty Ranjan , Analysis of Cyber Jurisdiction In India , Legal Service
India E Journal , http://www.legalserviceindia.com.
- Volume 6 The Law And Technology Committee, The Indian Journal Of Law And
, Batch: 2017- 2022, Symbiosis Law School Pune, Information Technology Law