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Pranjali Pandya pursuing BA LL.B. (Hons.) from Damodaram Sanjivayya National Law University, Vishakapatnam.
Date: 18.11.2020
JURISDICTION OF CYBERSPACE: ANALYSIS OF LAWS OF UNITED STATES AND INDIA
INTRODUCTION
Jurisdiction is one of the first major issues before
any court of law. If the court does not have jurisdiction to entertain the
matter which has come forward before it, then the matter will not be further
proceeded The Court either Domestic or International without jurisdiction does
not have any authority to entertain the matter, to decide rights and duties or
impose penalty or punishment. The Cyber space has raised the basic problems of
jurisdiction in International laws and domestic laws because of its de-territorial
nature. Internet allows parties to execute transactions without disclosing
their identity; and the parties` world and violate the rights of the other
party or person. The paradigm of the jurisdiction in the International law and
national law is required to be shifted because of the peculiar nature,
increasing use and need of the cyber space.
PRINCIPLES OF
JURISDICTION
There are three types of jurisdiction generally
recognized in international law. These are – (i) the jurisdiction to prescribe;
(ii) the jurisdiction to enforce; and (iii) the jurisdiction to adjudicate. The
jurisdiction to prescribe is the right of a state to make its law applicable to
the activities, relations, the status of person, or the interest of persons in
things.
Under International law, there are six generally
accepted bases of jurisdiction or theories under which a state may claim to
have jurisdiction to prescribe a rule of law over an activity. In the usual
order of preference, they are – (i) Subjective Territoriality, (ii) Objective
Territoriality, (iii) Nationality, (iv) Protective Principle, (v) Passive
Nationality, (vi)Universality.
As a general rule of International law, even where one
of the bases of jurisdiction is present, the exercise of jurisdiction must be
reasonable.
Subjective territoriality is by far the most important
of the six. If an activity takes place within the territory of the forum state,
then the forum state has the jurisdiction to prescribe a rule for that
activity. The case majority of criminal legislation in the world is of this
type.
Nationality is the basis for jurisdiction where the
forum state asserts the right to prescribe a law for an action based on the
nationality of the actor.
INDIAN
POSITION OF THE JURISDICTION IN CYBERSPACE
In majority of instances the Indian Penal Code, 1860
(IPC) and Information Technology Act, 2000 (IT, Act) in India deals with the
position of jurisdiction of cyber space. Section 2 to 4 (2) of the IPC deals
with territorial and extra territorial offences. The IPC is made applicable to
the any offence committed by the India citizen in the whole of the globe. In
the instances of person (non – citizens) doing offence outside the Indian Territory,
the offences does not fit in the scope and ambit of the Indian Penal Code,
1860. Therefore, offence conducted by the person from other sovereign nation in
cyberspace is not punishable under the Penal Codes, 1860. Another important
legislation, IT Act, 2000 is enacted to resolve the problem of jurisdiction in
India. The Information Technology Act, 2000 is applicable to the citizen and
non – citizens committing crimes outside the India territory (Section 1(2) and
Section 75 of the Information Act, 2000).
It is submitted that even Section 75 of Information
Technology Act of 2000 and Section 3 and Section 4 of the Indian Penal Code
provides extraterritorial jurisdiction. The
Provisions of both the Acts have only partially
resolved the problem of the jurisdiction. According to sub – section 1 of the
Section 75 of the Information Technology Act of 2000 the jurisdiction with
respect to the offence or contravention committed outside India by any person
irrespective of his nationality the Information Technology Act of 2000 would be
applicable. The sub – section 1 of the Section 75 is subject to qualification
provided under sub 0 section 2 of the Section 75. Sub – section 2 of the
Section 75 of the Information Technology Act, 2000 applies 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 the territory of
India. The word “involve”, is very
broad word. It may include the offence committed by the foreigner against
another foreigner of different country involving computer network located in
the territory of India. In such cases the offence may be conducted on internet
from one sovereign state to another sovereign state via network located in
India. In above example though internet network is located in India neither
interest of India territory nor citizen of India is involved in any manner.
Therefore, these types of broad wording of the
legislation are in conflict with the territorial principle of the International
Law.
In addition to above Sections, Section 13 of
Information Technology Act of 2000 is also relevant to analyze the problem of
jurisdiction in cyber space. Section 13 deals with time and place of dispatch
and receipt of electronic record. Sub – section 3 of the Section 13 is worded
as follows – “Save as otherwise agreed
between the originator and the addressee, an electronic record is deemed to be
dispatched at the place where the originator has his place of business, and is
deemed to be received at the place where the addressee has his place of
business”. Section 13 of the Information Technology Act, 2000 assumed the
place of dispatch and place of dispatch or receipts of the electronic record.
This assumption is important because it provides jurisdiction to the Indian
Courts if the place of business of originator or addressee is in India.
According to Section 13 of the Act, the court will have jurisdiction though the
electronic record in fact may or may not be received in or dispatched from the
computer, computer systems or computer mechanism situated in India. Normally,
the Court gets jurisdiction at the place of business, place of dispatching of
electronic record and place of receiving the electronic record. Section 13 of
Information Technology Act of 2000 will have overriding effect on Civil
Procedure Code and Criminal Procedure Code.
According to statutory assumptions created under
Section 13 of the Information Technology Act of 2000 though of India and if his
place of business is outside the territory of India, the Indian Court cannot
exercise the jurisdiction. Similarly, according to said assumption created
under Section 13 of the Act the Court can assumed jurisdiction though
electronic message is dispatched or received outside the territory of India if
the person receiving or dispatching an electronic message has place of business
in India.
It is pertinent to note that because of Section 13 of
the Information Technology Act of 2000 the Indian Court would not be able to
take cognizance of the matter though Act of dispatching electronic message is
partially or fully conducted from the territory of India.
Further, because of this statutory assumption the
court would be unable to take cognizance of the matter even of the electronic
message has an adverse impact on rights or interests of the citizen(s) of
India. The assumption created under Section 13 of Information Technology Act of
2000 does not have any advantage as such because otherwise also according to general
principles of jurisdiction and CPC and Cr. P.C the Court was empowered to take
cognizance of the matter at the place of the business of the person. Section 13
of the IT Act, is apparently inconsistence with territorial and passive
nationality principles of International Law on jurisdiction.[1]
Section 4 of the IPC, 1860 has been amended by
amendment Act, 2008. According to new sub – section (3) of Section 4 of the
IPC, the code would apply, “any person in
any place without and beyond India committing offence targeting a computer
resource located in India”. According to explanation (b) the expression “computer resource”, shall have the same
meaning assigned to it in clause (k) of sub – section (1) of section (2) of
Information Technology Act of 2000 (21 of 2000). According to the new provision
of the IPC, 1860 for applying the India Penal Code “targeted computer resource”, shall be located in India.
It is pertinent to note that the word “targeting” is used in sub – section 3 of
Section 4 IPC, 1860. The word “targeting”
is not further defined or clarified by the legislature. The literal or
dictionary meaning of “targeting” is
“aiming at”. The literal or
dictionary meaning of words used in criminal law is needed to stress out
because the rule of strict interpretation is applicable to the criminal law.
The rule of strict interpretation implies the strict or literal interpretation
of the criminal law. It is submitted that, after applying the rule strict
interpretation, there is a doubt whether IPC would be applied when –
(a)
Aim or target is
not a computer resources but a person. It means the intention is not to cause
wrongful loss to the computer resources including computer or data per se but to the person via or with
help of computer resources. In this example “means” and “target” are
different, means is computer resource and target is a person. Therefore, in the
above example offence is committed with the help of computer resource and not
by targeting it.
(b)
the offences are
committed via network located in India;
(c)
Wrongful loss is caused
to the person by making data accessible to the entire world including India but
date is copied from the computer located outside the territory of India.
(d)
In the examples of passive websites registered and created outside
India (for example photographical websites) but accessible in India. Similarly,
a website with unauthorized copyrighted material may have access in India
without targeting computer resources located in India. In these examples the
target is not computer resources located in India per se. The intention is to
make it accessible to the entire world. Incidentally, it would be accessible in
India also. The above explanation shows that the jurisdiction clause is
resource (object) centric rather than victim centric.
UNITED STATES
POSITION OF JURISDICTION IN CYBER SPACE
It is important to understand the traditional
principles of jurisdiction, like personal jurisdiction, local state`s long arm
statute and the due process clause of the United States Constitution to know
how these principles have been used by various courts to resolve e – commerece
related disputes.
Computer crimes because of their transitional nature
involve certain difficult jurisdictional issues. Suppose a hacker operating
from a computer in country A, enters a database in country B, and after routing
the information through several countries causes a consequence in C, here
atleast three jurisdictions are involved and who shall try him? The dilemma was
described very appropriate by La Forest, J., in Libman v. The Queen[2],
in following words – “one is to assume
that the jurisdiction lies in the country where the crime is planned or
initiated. Other possibilities include the impact of the offence is felt, where
it is initiated. Other possibilities include the impact of the offences is
felt, where it is initiated. Where it is completed or again where the gravamen
or the essential element of the offence took place. It is also possible to
maintain that any country where any substantial or any part of the chain of
events constituting an offence takes place may take jurisdiction”.
CONCLUSION
The Cyber Space is a world with no limits and hence it
becomes difficult to determine the power of the court to adjudicate upon the
matter hence the need of the hour is to look into provisions of law that can be
applicable to deal with the case of cyber crime.
Recently, also due to the COVID – 19 pandemic there
had been an increase in the number of cyber crimes and itself shows how the
countries including US and India are vulnerable position to cyber threats and hence
addressing this issue is vital.
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