Introduction
The scope of cyber law is very wide and it includes determining cyber jurisdiction in a case involving different countries. The legality of a website, app, product, or content can vary between countries, leading to complexity due to the residence status of the parties involved. The jurisdiction of cyber law varies based on the type of cybercrime and where it was committed. The characteristics of the Internet and the World Wide Web include ubiquity, universality and utility.[1] There are no boundaries or distinctions in the digital realm. Segregations, much like air or space, are defined by abstract boundary lines. It is a consistent problem to apply standard jurisdiction rules to this interconnected space.
What does jurisdiction mean?
The Black’s Law Dictionary[2] describes jurisdiction as the authority of a court to make decisions or rulings and the geographical location where political or judicial control is in effect. Cyberspace is not defined by physical boundaries, but imaginary boundaries still determine the political or legal control that each country has over parts of this digital realm. In the case of A.R. Antulay v R.S. Nayak[3], the Supreme Court upheld the stand from Carlile v National Oil & Development Co.[4] that jurisdiction refers to a court’s ability to hear and decide on a case, and issue legally binding orders.
Borderless Boundaries
The internet has established a fresh domain, free from borders or limits. The initial expansion of the Internet was natural and self-governed. Recent discussions have focused on the idea of controlling the internet with rules, which would be restricted by geographic borders in reality. In recent times, there has been a significant increase in the internet, especially in the e-commerce and retail industry, resulting in a drastic transformation in global lifestyles. This growth has expanded the potential for online disputes and brings attention to the previously overlooked issue of enforcement. Online conflicts bring up the main issue of jurisdiction, given the widespread presence of the marketplace.
Types of Cyber Jurisdiction
The types of cyber jurisdiction are as follows-
- Personal Jurisdiction: The term personal jurisdiction describes the court’s power to decide cases involving particular people or organisations. In Pennoyer v. Neff, the US Supreme Court stated that personal jurisdiction over non-residents is restricted by the US Constitution’s due process clause, i.e., there is no direct jurisdiction over them.
- Subject-matter jurisdiction refers to a court’s ability to hear and decide cases about a certain subject matter. However, this constraint was surmounted by the minimum contacts doctrine, which also granted jurisdiction over non-residents. The plea will not be accepted and the plaintiff will have to refile the case in the proper court if they file the lawsuit in a court unconnected to the particular subject matter.
- Pecuniary jurisdiction primarily involves cases related to financial matters. The suit’s worth must not surpass the monetary limit. Different courts have specific limits for trying cases based on their value, beyond which the case must be tried elsewhere.
Test of Jurisdiction
Minimum Contacts Theory
This test is applicable where both or any of the parties are outside the territorial jurisdiction of the court. In the landmark judgment in Washington v International Shoe Company[5], this theory was evolved by the US Supreme Court.
After this case, the court laid down three criteria-
- “The non-resident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections.
- the claim must arise out of or result from the defendant’s forum-related activities, and
- exercise of jurisdiction must be reasonable.”
Sliding Scale Theory
Another name for sliding scale theory is the Zippo Test. the most used standard for figuring out personal jurisdiction in internet cases. The degree of website interactivity is used to define jurisdiction. The level of personal jurisdiction that courts in the forum state have over something increases with the frequency of interactions.
Two categories of websites include active and passive; Active websites engage users in communication or interactions while also supplying information. Passive websites only provide information and do not allow for interactions. The courts have little to no jurisdiction over a passive website, some jurisdiction over a moderately interactive site, and full jurisdiction over a highly interactive site.
In the famous legal case of “Zippo Manufacturer v Zippo.Com[6], the plaintiff Zippo Manufacturer, a Pennsylvania lighter manufacturer, took legal action against the defendant Zippo.com for using a trademark without permission. The defendant was highly interactive; therefore, personal jurisdiction will apply to them.”
Effects Test
The Effect test necessitates specific conditions to be met, particularly taking action directly aimed at harming the forum state with full knowledge and intention. If the court determines that the defendant’s conduct resulted in harm to the state where the legal action is taking place, then personal jurisdiction in cyberspace is established even if there is no physical presence.
In the famous Calder v Jones[7] case, the US Supreme Court noted that “state courts can assert personal jurisdiction over individuals who are not residents. The editor and writer of a national magazine published a slanderous article about the residents in this instance. The case involved the plaintiff Shirley Jones suing the distributor, writer, and editor Calder of a national magazine for defamation, alleging that they portrayed her as an alcoholic. Jones lived in California when the article was written and edited in Florida. Jones took legal action against the defendants in a California court, as the magazine had a large readership in the state. The court decided that it has jurisdiction over the defendants in California.”
In the case of Panavision International v Toeppen,[8] “the defendant engaged in cybercrime by commercially using the plaintiff’s trademark and then selling it back to him at a high price. The California court determined that it had personal jurisdiction over the non-resident defendant by utilizing the effects test.”
Jurisdiction under the Information Technology Act, 2000
The Information Technology Act, 2000 declares in section 1(2)[9] that it applies to all of India and includes any violations or breaches committed by any person outside of India.
Additionally, Section 75 stipulates that, except as provided in subsection (2)[10], the stipulations of this law will also apply to any offence or violation committed by any individual outside of India, regardless of their nationality. This act will apply to any individual who commits an offense or violation outside India, if it involves a computer, computer system, or computer network located within India, as stated in subsection (1)[11].
This Act establishes regulatory authority over cyberspace in India, and anyone, whether a resident or non-resident, who commits an offence under this Act in India will face consequences.
Conclusion
Although tests have been implemented to determine cyberspace jurisdiction, they remain a subject of debate in legal courts when determining jurisdiction in cybercrime cases that span across multiple countries. The standards for determining jurisdiction vary across countries. Therefore, a jurisdiction test may be valid in one country but invalid in another, making it challenging to establish one nation’s jurisdiction over the other when the parties involved are from different states. In this type of scenario, multiple tests should be utilized when determining jurisdiction.
Internet usage is growing constantly worldwide, so laws must evolve to effectively address cybercrime and related jurisdictional issues. International law must establish specific guidelines for determining jurisdiction, with cases that cannot be resolved having to be brought before the International Court of Justice.
Author(s) Name: A. Madhuvandhi (School of Excellence in Law, Tamil Nadu Dr. Ambedkar Law University)
References-
[1] Dow Jones & Co. Inc v. Gutnic 2002 HCA 56.
[2]Garner, Bryan A and Henry Campbell Black, Black’s Law Dictionary, 9th ed.,2004.
[3] A.R. Antulay v R.S. Nayak 1988 AIR 1531.
[4] Carlile v National Oil & Development Co 108 Okla. 18
[5] Washington v International Shoe Company 326 U.S. 310
[6] Zippo Manufacturer v Zippo.Com 952 F Supp 1119 (DCWD Pa 1997)
[7] Calder v Jones 465 US 783
[8] Panavision International v Toeppen 141 F 3d 1316 (9th Cir1998)
[9] The Information Technology Act, 2000, s 1(2)
[10] The Information Technology Act, 2000, s 75(2)
[11] The Information Technology Act, 2000, s 75(1)
