Information Technology Laws

JURISDICTION IN
CYBERSPACE

Submitted to:

Dr. Amita Verma

Submitted by:

Dhruv Sheoran

B.A.LL.B.(Hons), Semester 10, Section A

Roll number- 13/14

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Table of Contents
ACKNOWLEDGEMENT .............................................................................................. 3

INTRODUCTION .......................................................................................................... 4

CONCEPT OF JURISDICTION .................................................................................... 4

JURISDICTION OVER INTERNET............................................................................. 5

CONVENTION ON CYBER CRIME ........................................................................... 6

PERSONAL JURISDICTION IN CYBERSPACE ....................................................... 7

EFFECT OF FOREIGN JUDGEMENT ........................................................................ 9

JURISDICTION OF INDIAN COURTS OVER FOREIGN CITIZENS OR

RESIDENTS ................................................................................................................. 10

CRIMINAL LAW ........................................................................................................ 13

CYBERJURISDICTION IN INFORMATION TECHNOLOGY ACT, 2000 ............ 15

CONCLUSION ............................................................................................................ 17

BIBLIOGRAPHY ........................................................................................................ 18
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ACKNOWLEDGEMENT

I would like to thank our Information Technology Laws teacher, Dr. Amita

Verma for providing us an insight in the subject and making us acquainted

with the principles of Information Technology Laws. I am thankful to our

Department Director for providing us with such encouraging facilities. I

thank our library and the library staff for being helpful throughout. I am

grateful to have access to these facilities. Last but not the least, I thank my

family and friends for their encouragement throughout the making of this

project.
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INTRODUCTION

The authority of a court to hear a case and resolve a dispute involving person, property
and subject matter is referred as the jurisdiction of that court. It is the legislative
function of the Government to enact laws and judicial and/or administrative function
to enforce those laws. Thus, the principles of jurisdiction followed by a State must not
exceed the limits which international law places upon its jurisdiction.

CONCEPT OF JURISDICTION

‘Jurisdiction’ is the concept whereby in any legal system, the power to hear or
determine a case is vested in an appropriate court. Jurisdiction is the authority of a
court to hear a case and resolve a dispute involving person, property and subject
matter. These principles of jurisdiction are enshrined in the constitution of a State and
part of its jurisdictional sovereignty. All sovereign independent States possess
jurisdiction over all persons and things within its territorial limits and all causes, civil
and criminal, arising within these limits.3

1. Issues of Jurisdiction

The issue of jurisdiction has to be looked into from 2 perspectives:

i. Prescriptive Jurisdiction

It describes a State’s ability to define its own laws in respect of any matters it chooses.
As a general rule, a State’s prescriptive jurisdiction is unlimited and a State may
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legislate for any matter irrespective of where it occurs or the nationality of the persons
involved.

Enforcement Jurisdiction

A State’s ability to enforce those laws is necessarily dependent on the existence of

prescriptive jurisdiction. However, the sovereign equality of States means that one
State may not exercise its enforcement jurisdiction in a concrete sense over persons or
events actually situated in another state’s territory irrespective of the reach of its
prescriptive jurisdiction. That is, a State’s enforcement jurisdiction within its own
territory is presumptively absolute over all matters and persons situated therein.

JURISDICTION OVER INTERNET

Jurisdiction means the authority which a court has to decide matters that are litigated
before it or to take cognizance if matters are presented in a formal way for its
decisions, it could be said that it is the power/authority of the court to decide matters
that are brought before him. In this context, jurisdiction over activities on the Internet
has become a battleground for the struggle to establish Rule of Law in the Information
Society. 1 The rise of the global computer network is destroying the link between
geographical location and:

1) The power of local governments to assert control over online behavior;

2) The effects of online behavior on individuals or things;

3) The legitimacy of the efforts of a local sovereign to enforce rules applicable to

global phenomena; and

1
Reidenberg, R. Joel, Lex Informatica: The Formulation of Information Policy Rules Through Technology, 76
Texas Law Review p553, 554-55 (1998)
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4) The ability of physical location to give notice of which sets of rules to apply. 2

The net thus radically subverts a system of rule-making based on borders between
physical spaces, at least with respect to the claim that cyberspace should naturally be
governed by territorially defined rules.3

The Internet explosion has generated many jurisdictional disputes, putting the onus on
courts to determine how to apply historic concepts regarding personal jurisdiction to
the boundary-less world of the Internet. With so many outsourcing activities in India
and the popularity of networking websites, a fresh continuum of cases related to
“Personal Victimization” and “Economic Offences” in the nature of data protection,
cyber defamation, security, etc have evolved. Hacking initiated at one place adversely
affects any other place/institution and brings them to limbo.

CONVENTION ON CYBER CRIME

The Convention on Cyber crime was opened at Budapest on 23rd November, 2001 for
signatures. It was the first ever-international treaty on criminal offences committed
against or with the help of computer networks such as the Internet.

The Convention deals in particular with offences related to infringement of copyright,

computer-related fraud, child pornography and offences connected with network
security. It also covers a series of procedural powers such as searches of and
interception of material on computer networks. Its main aim is to pursue “a common
criminal policy aimed at the protection of society against cyber crime, inter alia by
adopting appropriate legislation and fostering international co-operation.”

2
https://lexwisdom.wordpress.com/2012/11/04/cyber-jurisdiction-in-india/ (Accessed on 3rd March, 18 at 10:00
hrs)
3
Katsh Ethan M, The Electronic Media and The Transformation of Law (New York, Oxford University Press,
1989) p 92-94; Katsh Ethan M, In a Digital World (New York: Oxford University Press, 1995) p 57-59, 218
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PERSONAL JURISDICTION IN
CYBERSPACE
E-commerce is 24/7 commerce. It is an online activity involving exchange of goods
and services for a consideration (money). Such activity may lead to disputes, which
could be:

(a) municipal (domestic) or (b) international. The question is how to resolve these
disputes keeping in view the complexity of online activity.

From the point of identifying the jurisdiction, it is important to know the nature of the
dispute and for that purpose the following questions are necessary32:

i. What has happened?

ii.Where did it happen? And

iii. Why did it happen?

The answers would provide not only the necessary information related to the
business model of the website but also the extent of commercial interaction between
the service provider (website owner) and the user.

The traditional principles of domestic and international jurisdiction that have

been developed and adopted over a period of time are now being extended to
cyberspace to formulate a new idiom of cyber jurisdiction. This adoption would
maintain continuity of established law and practice even in the realm of online
activities.4

4
http://shodhganga.inflibnet.ac.in/bitstream/10603/7829/14/14_chapter%205.pdf
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MEANING OF PERSONAL JURISDICTION

Personal Jurisdiction is the competence of a court to determine a case against
a particular category of persons (natural as well as juridical). It requires a
determination of whether or not the person is subject to the court in which the case
is filed.

Personal jurisdiction looks into an issue from the point of ‘physical presence’, whether
the person was a resident or a non-resident. If he is a resident, then there is no doubt
about his being subject to municipal (domestic) laws. The problem arises, if he is
a non- resident, what laws would be applicable – municipal laws of the state where he
is residing or municipal laws of the state whose laws he has transgressed?

TYPES OF PERSONAL JURISDICTION

It may be further classified into following 2 types:

General Jurisdiction

The “general” jurisdiction subjects a person to the power of the applicable

court with respect to any cause of action that might be brought. It has historically
relied on 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.

Specific Jurisdiction

The “specific” jurisdiction, refers to the power of the applicable court 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.
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EFFECT OF FOREIGN JUDGEMENT

Under the code of Civil Procedure, the effect of foriegn judgement has been
spelled out under the provisions of Section 13, which reads as follows:

When foreign Judgement not conclusive –

A foreign Judgement shall be conclusive as to any matter thereby directly

adjudicated upon between the same parties or between parties under whom they or
any of them claim litigating under the same title except —

• where it has not been pronounced by a court of competent jurisdiction;

• where it has not been given on the merits of the case;

• where it appears on the face of the proceedings to be founded on an incorrect view

of international law or a refusal to recognize the law of India in cases in which such
law is applicable;

• where proceedings in which the judgement was obtained are opposed to natural
justice; • where it has been obtained by fraud;

• where it sustains a claim founded on a breach of any law in force in India. 5

Except for the six grounds specifically mentioned in the section, the Indian courts
are bound to accept the decree of a foreign court as being conclusive.

Thus the courts in India are not averse to upholding the decree of a foreign
court and can, in fact, only hold the decree of a foreign court to be non-conclusive,
if such a decree does not fulfill the criteria set out in section 13 of the CPC. Thus, in
the event a decree is passed against an Indian citizen in respect of any perceived
breach of the laws of another state, the decree will be upheld in India, against the
Indian citizen, provided it does not suffer from any of the infirmities listed under
section 13.

5
http://www.academia.edu/4632726/Cyberspace_jurisdiction_and_Courts_in_India
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Coming to the primary issue of jurisdiction 'over the internet, in the event a
foreign court passes extra-territorial judgement over a citizen of India, the case law
examined above would clearly indicate that the courts in India would have no
hesitation in upholding a reasoned and sound decision of a foreign court. Indian
citizens, who establish a presence on the internet would therefore need to be careful
to follow the principles of law, set out in International jurisdictions to avoid
prosecution under those laws. It is therefore not enough to be mindful of local laws
alone. Any venture on the internet appears to be open to challenge from virtually
any jurisdiction and from any country that has internet access. 6

JURISDICTION OF INDIAN COURTS

OVER FOREIGN CITIZENS OR
RESIDENTS
Under section 16 of the CPC, a suit in respect of immovable property or in
respect of movable property that is actually under attachment or restraint, is required
to be instituted in the court within whose local jurisdiction, the subject matter is
situate. It is therefore not possible for an Indian court to assume jurisdiction over
immovable property situated within the jurisdiction of a foreign state.

Under section 19 of the CPC, a suit for the compensation of the wrong done
to the person or to movable property may be instituted either at the place of
residence or the place of business of the defendant or at the place where the wrong
was committed. However, the main section in the code dealing with the jurisdiction
of Indian courts over matters relating to personal injuries or damage to movable
property is section 20 which has been extracted here.

6
Dr Amita Verma, Cyber Crimes and Law, Central Law Publishers, Allahabad, 2009 at p327
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Other suits to be instituted where the defendant resides or cause of

action arises-

Subject to the limitations aforesaid, every suit shall be instituted in a court

within the local limits of whose jurisdiction-

(a) the defendant, or each of the defendants where there are more than one, at
the time of the commencement of the suit, actually and voluntarily resides, or
carries on business, or personally works for gains; or

(b) any of the defendants, where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides or carries on business, or
personally works for gain, provided that such case either the leave of the court is
given, or the defendants who do not reside, or carry on business, or personally work
for gain, as aforesaid, acquiesce in such institution; or

(c) where the cause of action, wholly or in part, arises.

Explanation- A corporation shall be deemed to carry on business at its sole or

principle office in India or, in respect of any cause of action arising at any place
where it has also a subordinate office, at such place.

The principle behind this section appears to be that a suit against a given
person may be brought at the place where such person resides or at least has his
place of business. This is apparently prompted by the rationale that the defendant,
not being the person who instituted the suit should not be put to undue hardship in
defending such a suit when the suit may not be maintainable at all. There is,
however, another aspect to this section that may warrant study, the jurisdiction of
the court where the whole or part.of the cause of action arises, as this could have
some bearing on the jurisdiction of the Indian courts over internet disputes.

In essence, this section is the equivalent of the US Long-Arm jurisdiction

provisions. It is a section that enables the court to assume jurisdiction over a dispute
regardless of where the principals are resident or carrying on business so long as a
portion of the 'cause of action' took place within the local jurisdiction.
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The applicability of the Indian case law discussed above in the context of
transactions on the internet, it was held that 'a court in this country has jurisdiction
over a non-resident foreigner, although he has not submitted to its jurisdiction,
provided the cause of action had arisen wholly or in part within its jurisdiction'.7 It
is thus clear that the Indian courts will assume jurisdiction over a matter if, even a
part of the cause of action of the dispute arose within the jurisdiction of the
specified court. What remains to be determined is what, in the context of internet
transactions, would constitute a part of the cause of action. In this, we can take a cue
from the cases decided by the courts of USA where similar ingredients (Long-Arm
jurisdiction) had to be proved in order to determine the jurisdiction of the courts.

We have seen that the US courts have, on occasion, held that the mere fact
that an individual can access a given site on the internet from within the jurisdiction
of the court before which the suit was preferred, is justification enough for the court
to assume jurisdiction over the dispute. Translated into terms applicable to a trial
before an Indian judge, this principle could b interpreted to state that the fact that a
site is capable of being viewed or read from within the jurisdiction of court within
which the suit is filed, is an indication that a part of the cause of action arose in that
jurisdiction and therefore a suit can be maintained in that court. There are
similarities between the Long-Arm principle used by the US courts and 'cause of
action, test used by the Indian courts. It remains to be seen whether these similarities
would allow the Indian courts to analyze the development of internet laws in the US
and to use this development of case law in their own judgement on matters
involving internet transactions. There has also been considerable discussion as to
what constitutes the cause of action in respect of a contract. It has been held that the
cause of action arises in each of the following places:8

• where the contract was made;

• where the contract was to be performed;

7
Bhagwan Shankar vs Rajaram AIR 1951 Bom 125.
8
N E Electric Power Corp Ltd. v. M/s Lakhi Enterprises AIR 1992 Gau 42.
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• where the consideration under the contract was to be paid.

CRIMINAL LAW
While the jurisdiction of the courts over civil matters is capable of different
interpretations in the manner discussed above, in case of criminal action, the
jurisdiction of the court arises on the basis of the location of the victim of the crime,
or the actus reus. Since the internet is everywhere, the commission of a crime by an
individual by, for example, posting material to the internet, results in this criminal
act being simultaneously being committed everywhere on the internet. Thus,
defamatory statements posted to newsgroups on the internet are accessible by
persons the world over, who have access to the internet. It is not too extreme to
imagine that as a result of a posting to the internet, a user could in the worst-case
scenario, find himself the subject of an extradition request from a foreign
government.

In the context of the Indian courts, there is very little to offer in modification
of the statement of law above. Chapter XIII of the Code of Criminal Procedure
1973, deals with the jurisdiction of courts in respect of criminal matters. It has been
structured in such a manner as to enlarge as far as possible, the range of locations in
which the offence may be tried in order to minimize impediments to prosecution on
the basis of technical objections (such as the want of territorial jurisdiction).
Ordinarily, the jurisdiction of the court relates to the place where the offence is
committed. Section 177 reads as follows:

177. Ordinary place of enquiry and trial- Every offence shall ordinarily be
inquired into and tried by a court within whose jurisdiction it was committed.

The general rule of jurisdiction laid down in section 177 is subsequently

sharpened in the following section. Section 178 deals with situations where there is
uncertainly as to the local area within which the crime was committed.
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178. Place of inquiry or trial-

(a) when it is uncertain in which of several local areas an offence is

committed or

(b) where an offence is committed partly in one local area and partly in
another, or

(c) where an offence is a continuing one, and continues to be committed in

more local areas than one, or

(d) where it consists of several acts done in several different local areas, it
may be inquired into or tried by a court having jurisdiction over any of such local
areas.

This provision of law assumes added significance in the light of internet

crimes, as it is normally impossible to determine with any certainty where exactly
those offences have been committed. If looked at closely, the similarity between this
section and the provisions relating to the jurisdiction over civil matters as based on
the 'causes of action' is marked. The relevant conclusion is that the courts within
whose jurisdiction even as part of the offence was committed have jurisdiction to try
the matter.9

9
Dr Amita Verma, Cyber Crimes and Law, Central Law Publishers, Allahabad, 2009 at p-332
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CYBERJURISDICTION IN
INFORMATION TECHNOLOGY ACT,
2000
However, the law has gone much further. It shall also apply to violation or
contravention of the provisions of this Act done by any anywhere in the world. By
means of this provision, the law is person jurisdiction over violators of The
Information Technology Act assuming the territorial boundaries of India. This
provision is explained perhaps by the unique nature of cyberspace, which knows no
boundaries. The Information Technology Act, 2000 specifically provides that unless
otherwise provided in the Act, the Act also applies to any offence or contravention
thereunder committed outside India by any person irrespective of his nationality.10

It is however clarified that the Act shall apply 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 India.11 The words "act or conduct constituting the offence or
contravention involves a computer, computer system or computer network located
in India" are very significant to determine jurisdiction of the IT Act over acts
committed outside India.

For assuming jurisdiction over an act constituting an offence or contravention

under the IT Act, which is committed outside India, it has to be proved that the said
act involves a computer, computer system or computer network located in India. For
instance, where a website is created in the US which contains pornographic
material, it shall not give the IT Act jurisdiction to question the site unless the
creation or maintenance or running of the site involves a computer, computer

10
Sec 1(2) of IT Act, 2000.
11
Section 75 of IT Act, 2000
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system or computer network located in India. But where the said website uses a
server or any other computer network located in India, the IT Act would assume
jurisdiction to question the website under section 67 of the IT Act.

Another instance to explain the jurisdiction of the IT Act is where a person

from the US hacks a computer system or network in India, section 66 of the IT Act
would come into play to punish the accused for hacking because his act involves a
computer in India. Similarly, where a person anywhere in the world plants a virus
into a computer system located in India, he would be liable under section 43(c) of
the IT Act to pay damages by way of compensation net exceeding Rs 1 crore to the
victim.12

12
Dr Amita Verma, Cyber Crimes and Law, Central Law Publishers, Allahabad, 2009 at p-333
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CONCLUSION

To conclude, technology reconstructs societies, alters its concern and law is

an instrument through which these altered concerns need to be regulated, managed
and facilitated. To protect the democratic rights of the citizens in the borderless
world, the courts around the world are struggling to come up with a coherent
doctrine of personal jurisdiction for the internet transactions. Though, the
application of real world norms in the virtual society is well established, the virtual
world should be subjected to a greater degree of control than the real world.
However, the principles on which regulation of virtual society should be based
necessarily differ from the principles of real world regulation.
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BIBLIOGRAPHY

BOOKS REFERRED:

 Bare Act of Information Technology Act, 2000.

 Dr Amita Verma, Cyber Crimes and Law, Central Law Publishers,

Allahabad, 2009

 Dr Farooq Ahemed, Cyber Law in India, New Era Law Publishers, 3rd
edition, 2008

INTERNET SOURCES:

 https://lexwisdom.wordpress.com/2012/11/04/cyber-jurisdiction-in-
india/

 http://racolblegal.com/issue-of-jurisdiction-under-cyber-law-in-india/

 https://cis-india.org/internet-governance/publications/jurisdictional-
issues

 http://www.academia.edu/4632726/Cyberspace_jurisdiction_and_Courts
_in_India

 http://shodhganga.inflibnet.ac.in/bitstream/10603/7829/14/14_chapter%
205.pdf