CYBER LAW

UNIT-5, JUDICIAL ANALYSIS OF CYBER JURISDICTION

SYNOPSIS
 Introduction
 Cyberspace jurisdiction and its concept
 Types of cyberspace jurisdiction
 Issues of jurisdiction in cyberspace
 Principle of jurisdiction in cyberspace
 Freedom of speech in cyberspace

INTRODUCTION
Cyberspace jurisdiction has always been a controversial issue not only in India
but also at the global level. Cyberspace has to always undergo various
jurisdictional issues.
The initiation of any case or complaint has to face the problem of jurisdiction at
different levels.
The advancement of the internet came to be known as cyberspace because it
gave birth to a virtual world. If the real world is full of crimes and wrongdoings,
then how could we expect that the virtual would be not.

CYBERSPACE JURISDICTION AND ITS CONCEPT

The ambit of Cyber law is so vast that cyber jurisdiction in a case involving
various countries is very difficult to ascertain.
A website, app, product, or content in one country may be legal but illegal in
another, the parties may be residents or non-residents, which makes this concept
all the more complex.
Cyber law’s jurisdiction depends on the kind of cybercrime and the location
from which it has been done.
In simple terms, is the extension of principles of international jurisdiction into
the cyberspace.
Cyberspace has no physical (national) boundaries. It is an ever-growing
exponential and dynamic space.
With a ‘click of a mouse’ one may access any website from anywhere in the
world.
TYPES OF CYBERSPACE JURISDICTION
There are three types of cyber jurisdiction recognized in international law,
namely-
Personal Jurisdiction – It is a type of jurisdiction where the court can pass
judgments on particular parties and persons. It also operates along with the due
procedure of law established by the constitution of that country. Personal
jurisdiction in cyberspace has evolved, one case law at a time, like cyberspace
itself. The advancements are constant; hence it proposes a challenge for the laws
to keep up with it.
Due to its versatile and inconsistent nature, absence of physical boundaries and
dynamic space structures, containing cyberspace in the bounds of a few specific
laws and assigning jurisdiction becomes quite a task.
Subject-matter jurisdiction – It is a type of jurisdiction where the court can hear
and decide specific cases that include a particular subject matter. If the specific
subject matter is of one court but the plaintiff had sued in any other court then
the plea will be rejected and the plaintiff will have to file the case in the court
which is related to that matter.
Pecuniary Jurisdiction – This type of jurisdiction mainly deals with monetary
matters. The value of the suit should not exceed the pecuniary jurisdiction.
There are various limits set for a court that can try a case of a certain value
beyond which it is tried in different courts. It is dependent upon the claim made
in proceedings and is structured in hierarchical order.

ISSUES OF THE JURISDICTION IN CYBERSPACE

Jurisdiction gives power to the appropriate court to hear a case and declare a
judgment. In cybercrime instances, the victim and the accused are generally
from different countries, and hence deciding which cyber jurisdiction will
prevail is conflicting. The internet as stated earlier has no boundaries; thus, no
specific jurisdiction in cyberspace can be titled over its use. A user is free to
access whatever he wishes to and from wherever he wishes to. Till the time a
user’s online activity is legal and not violative of any law, till then there is no
issue. However, when such actions become illegal and criminal, jurisdiction has
a crucial role to play.
For example, if a user commits a robbery in country ‘A’ while sitting in country
‘B’ from the server of the country ‘C,’ then which country’s jurisdiction will
apply needs to be answered. In this case, the transaction might have been done
virtually, yet the people are present physically in their respective countries
governed by their laws and the court generally decides the cyber jurisdiction of
the country where the crime has been actually committed.

PRINCIPLES OF CYBERSPACE JURISDICTION

 Subjective territoriality– It lays down that if the act is committed in
the territories of the forum state, then its laws will be applicable to the
parties. The act of the non-resident person in the forum state is the key
element under it. For example- A country can make a law criminalizing
an act in its territory, and then the subject aspect of the territoriality will
recognize it.
 Objective territoriality – It is invoked when an act is committed
outside the forum state’s territorial boundary, yet its impact is on the
forum state. It is also known as ‘Effect Jurisdiction.’ It was established in
the case of United States v Thomas in which the defendant published
[4]

phonographic material and to see and download it, he provided the

subscribers with a password after getting a form filled out which included
their personal details, and the plaintiff claimed it to be violative of its
domestic laws, the court held that “the effect of the defendant’s
criminal conduct reached the Western District of Tennessee, and that
district was suitable for accurate fact-finding,” and the court has the
cyberspace jurisdiction.
In the landmark case of Playboy Enterprise, Inc. v Chuckleberry Publishing,
Inc., the defendant operated a website in Italy on which obscene photographs
were displayed, and some of its users were citizens of the USA. The court found
it to be against US laws and banned the website from falling under US
jurisdiction; however, the court does not have cyberspace jurisdiction to put a
complete ban on the use by other users of different states.
Nationality – It is applied to the offender who is the national of the state; for
example, if a person of a state commits an offence in a foreign country that is
punishable by domestic laws, then the state has the power to punish its citizen.
Universality – The acts which are universally acclaimed as crimes such as
hijack, and child pornography. A cyber-criminal can be convicted in any country
for committing such a heinous crime. It presumes that the country has cyber
jurisdiction to prosecute the offender of a cybercrime.
FREEDOM OF SPEECH IN CYBERSPACE
Freedom of speech and expression means the right to express one’s convictions
and opinions freely by word of mouth, writing, printing, photographing, or any
other means. It is widely accepted in modern times that the right to freedom of
speech is the essence of a free society and must be safeguarded at all times.
Justice Bhagwati in the case of Maneka Gandhi v Union of India emphasized
that democracy is essentially based on free debate and discussion and it is the
only corrective of government action. He added that if democracy signifies a
government of the people by the people, then the citizens are rightfully entitled
to participate in the democratic process, and to facilitate the same they must
exercise their right of making choice, free and general discussion of public
matters.
“Freedom of Expression” in “Cyberspace” (India)
The Supreme Court in 2013 while deciding the case of Shreya Singhal v Union
of India[9] wasposed with the question concerning the extension of the ambit of
Article 19(1) (a) to cyberspace. Section 66A of the Information Technology Act,
2000 was struck down for reason of its vagueness. This for the first time
required the Indian judiciary to ponder upon the question of cyberspace and
freedom of expression.
The debate was whether cyberspace falls under the ambit of Article 19(1) (a).
The court in this regard held that right to acquire and disseminate information
forms a part of freedom of expression. Furthermore, the Court held that the
acquisition or dissemination of information does not need to take place by any
particular medium and that the constitutional right extends to any kind of
medium.
In stating so the court referred to the case of the Cricket Association of Bengal
wherein it was stated that ‘the right to communicate’ requires the right to
communicate through any available medium, whether print or electronic, or
audio-visual.[10] Additionally, Justice Nariman quoted that “the virtue of
electronic media cannot become its enemies”. Therefore, this case established
that the fundamental right of freedom of expression also extends to the internet
and cyberspace.