Social Links

"You can easily add us on any social Website"

Determination of Jurisdiction in Cyber - Crimes: Issues And Challenges

The growth of internet communication and commerce has led to the conversion of the world into a Global Village. The access to audience worldwide has increased[1]. While due to limiting of borders while business and transactions, the horizons of cyber space have altered and grown in massive proportions. After the commission of a traditional crime, the questions asked are of pecuniary, territorial and subject matter jurisdiction. Such questions are only answered in vague in cases of cybercrimes.[2]

 

A cybercrime is one perpetuated by the use of computers and other electronic devices in an attempt to commit fraud against institutions, companies or individuals. Unlike in the conventional nature, it uses the newly grown medium of the cyberspace.

 

The challenge primarily faced in the issue of Jurisdiction is that the internet is borderless and there are no territorial boundaries with regard to the cyber space. This is as the location of the victim and the offender with the location of the commission of the offence is vague. There are no International Standards with reference to the cyber space jurisdiction. Such is the space that it cannot be controlled and is referred to as unruly.

 

TESTS CURRENTLY IN FORCE

  • Minimum Contacts Test

A two-part test for determining jurisdiction of the forum court over a defendant not residing ot carrying on business within the prescribed jurisdiction.

a. The Plaintiff needs to show that the defendant had sufficient number of minimum contacts in the forum That is, the plaintiff has to show that the defendant must have purposefully directed its activities towards the forum state or otherwise ‘purposefully availed’ of the privilege of conducting activities in the forum state. Basically in simple terms conducting of business in the state where the jurisdiction is evoked.

 

b. The forum court had to be satisfied that exercising jurisdiction would comport with the traditional notions of fair play and substantial justice.

 

The objectives fulfilled by this test were:

a. It protects the defendant from the problem of litigation in a distant forum.

 

b. To ensure that the states do not “reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.”

 

This test evolved in the case of Shoe Co. v. Washington  326 U.S. 340 (1945).

 

  • Purposeful Availment Test

This test was explained in the case of Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997). If the defendant has taken deliberate action within he forum state of if he has created continuing obligation by residing in that place with the other forum residents, he is subject to purposeful availment.Physical presence is not mandatory provided that the forum residents are affected. A three part test was formulated with the issue of jurisdiction over the defendant:

a. The non-resident defendant must do some act by which he invokes the jurisdiction of the forum and its benefits and protections thereof.

b. The claim must arise of the forum related activities of the defendant.

c. There should be reasonable exercise of jurisdiction.

 

This test was evolved in the case of Hanson v. Denckla  357 U.S. 235 (1958).

 

  • Sliding Scale Test

The likelihood that personal jurisdiction can be constitutionally exercised, is directly proportionate to the nature and quality of commercial activity that an entity conducts over the internet, lead to the comparison with a sliding scale. The specific personal jurisdiction is based on Internet Activity. The case which evolved this test was of Zippo Manufacturing Co. v. Zippo Dot Com. Inc.952 F. Supp. 1119, 1124 (W.D. Pa. 1996).The three categories divided into:

a. Passive

Passive information is information available to viewers without any means to respond. Courts ordinarily would not be expected to exercise personal jurisdiction based solely on a passive Internet website, because to do so would not be consistent with traditional personal jurisdiction law.

 

b. Interactive

It allows the defendant to communicate with the people of the forum state and the people of the forum state can also communicate back.

 

c. Integral to the Defendant’s business.

An integral site is used by the defendant to conduct transactions with the people of the forum state and receive messages from specific customers.

 

  • Effects Test

If the operator of a website intends to cause an effect in a given forum ad establishes the same, he avails the privilege of doing business there. For example, a non-resident of California allegedly operated a scheme consisting of registering exclusive Internet domain names for his own use that contained registered trademarks. The defendant allegedly demanded fees from Panavision, a well-known California resident, and other businesses that asked him to discontinue his unauthorized use of their trademarks. The Ninth Circuit affirmed a finding of specific personal jurisdiction in California federal court over the defendant by the defendant’s having committed a tort “expressly aimed” at California. It reasoned that the defendant could foresee the harm done in California and therefore satisfied the minimum contact requirement.[3]

 

POSITION IN INDIA

A plaintiff, in order to invoke the jurisdiction of a particular court in a case related to hosting of websites that is violative of Intellectual Property (IP) rights[4] of the plaintiff has to show that the defendant targeted its interactive website at viewers in the forum state for the purpose of commercial transactions and in fact entered into such transactions using the website. In other word it has to satisfy the Effects test guidelines. Further a lone trap transaction may not demonstrate the ‘purposeful’ targeting by the defendant of the forum state or of ‘aiming’ at particular customers therein.[5] A more systematic behaviour over a series of transactions will have to be shown as having been entered into by the defendant. Nevertheless the courts in India will have to guard against over-protection of local interests and adopt a balanced approach to ensure that a middle path is found in individual cases.

 

In India, as long as the disputes concerning the parties are within the country, the issue of enforcement of the judgement of one state court in another state where the defendant resides or carries on business may not arise in view of the Code of Civil Procedure. However, when the defendant is outside the country, unless there are reciprocal arrangements on the side of the defendant, such enforcement may cause problems. The governing statute is the Information Technology Act, 2000 and the Information technology rules, 2003.

 

CONCLUSION

   With the pace at which cyber technology has improved, cyber legislations have not followed pace. The Information and Technology Act is a solitary and inadequate legislation in the face of the global concerns. Countries like Singapore and Europe have although drafted them, they lack in enforcement. This leads to increase in terrorism and no remedy available. The Budapest Convention or the Convention of Cyber Crime governs the countries of Europe and other observer states. Herein, Article 22 talks about jurisdiction. It accounts for various cybercrime offences. This creates a massive void in the otherwise, arena having immense potential.

Better legislations with increasing ambit of cyberspace is essential. Such legislations should be governing Internationally to avoid the contradiction of laws between the plaintiff and defendant countries.

 


*2nd Year Student (BA LLB)

Symbiosis law School, NOIDA

Email: ashabaribasuthakur27@gmail.com

 

[1] Tushar Kanti Saha, Cyberspace−Conflicting Jurisdictional Spheres of Litigating IPR Claims, JOURNAL OF INTELLECTUAL PROPERTY RIGHTS VOL 15, PP 364-373 (2010).

 

[2] Ms. Prevy Parekh, Cyberspace And Jurisdiction, JOURNAL ON CONTEMPORARY ISSUES OF LAW (JCIL) VOL. 2 ISSUE 5.

[3]D. Johnson and D. Post, Law and Borders—The Rise of Law in Cyberspace, 48 STAN. L. REV. 1367, 1371 (1996).

[4]Id.

[5]Justice S. Muralidhar, Jurisdictional Issues in Cyberspace, THE INDIAN JOURNAL OF LAW AND TECHNOLOGY.

Download

Submitted by Ashabari Basu Thakur

Social Links

"You can easily add us on any social Website"