Você está na página 1de 14


Cyberspace is a borderless worlda world of its own. It refuses to accord to the geopolitical boundaries the respect that private international law has always accorded to them and on which it is based. Therefore there is a need to have a different solution to this different problem. The solution lies neither in adopting a hands-off approach nor in simply extending mutatis mutandis the existing conicts rules. Looking at the dismal history of private international law, the present author proposes a treaty based international harmonisation model as the most ideal one where rules are certain and predictable and at the same time exible in order to ensure that the potential benets of this technology are meaningfully consumed by the human civilisation.1 Along with the unique opportunities the Internet offers, it also poses new and significant challenges to traditional legal philosophy. 2 The growth of

transborder activities poses new challenges for law enforcement agencies. Most existing law enforcing systems were designed to address the fraudulent and deceptive commercial practices against consumers when such practices were mostly of domestic in nature. But after the advent of internet it has been seen that the current system of laws is not capable of addressing cross boundary issues. The problem of jurisdiction arises because it is only in the real world that there exist mechanisms to confer rights, immunities, privileges, etc. with no corresponding equivalent in the cyber world. In other words, rights are rights only vis-a-vis the real world. On account of the differences in the normative standards of conduct among the different political units in the real world, the question of jurisdiction becomes particularly important, for what may be legal
1 2

Sachdeva, International Jurisdiction in Cyberspace, [2007] C.T.L.R. Oberding and Nordenhaugh , A Separate Jurisdiction for <http://jcmc.indiana.edu/vol2/issue1/juris/html>, visited on 5th nov 2013.




in one legal system may be prohibited by another, and the same may be circumstantially justiable in yet another.

The general meaning of the term jurisdiction refers to, Power of the State to exercise its authority over property and persons within its geographical limits. However, in the context of dispute resolution, a clear concept of jurisdiction is needed to answer questions such as which is the most appropriate court to hear the dispute? What law will be applied to resolve the dispute? Which authority will enforce the judgment? In such circumstances the term jurisdiction would involve- The scope of the courts power to examine and determine the acts, interpret and apply laws, make orders and declare judgments. Geographic area, the type of parties who appear, the type of relief that can be sought, and the point to be decided may limit jurisdiction.3 The whole notion of jurisdiction is vital in the context of dispute resolution because of the deeply rooted relationship between physical proximity and the effects of any legal activity. Jurisdiction enables the States to monitor and control the activities of property and persons within and across its territorial boundaries. The subjects of a sovereign States laws are primarily located within its physical borders and so are greatly affected by the application of its laws. Legal theories about sovereignty, territoriality and an entitys physical presence support the traditional notion of a Courts jurisdiction in its role as adjudicator. These schools of thought recognize the sovereign power of a State and the territorial origin and application of a set of laws. A key assumption in all these theories is that a State, which is supported by the people of a particular area,

Solanki, Jurisdiction in Cyber Space: Where to File a Suit, vol1, issue 10, Paripex - Indian Journal of Research, available at <http://theglobaljournals.com/paripex/file.php?val=NTQy>, visited on 5t nov 2013.

makes laws which will only be valid, applicable and enforceable within its territory. Cyberspace, which constitutes a technology-driven imaginary space, defies control by mechanisms evolved in the real world essentially based on geopolitical boundaries. It is a new social order, which cuts across cultures, civilizations, religions, etc. and creates a new realm of human activity 4 forcing mankind to rethink the appropriateness of extending the existing rules to it. Cyberspace clearly disregards the general correspondence, existing in the real world, between physical borders and lawspacebased on considerations of power, effects, legitimacy and notice.5 The law, in the non-virtual world, works essentially on a two way premise that a certain set of legal rules is applicable to only one set of persons, who are present within the limits of the sovereign prescribing such rules, and to none other; and that a certain set of persons are required to comply with only one set of standards, and with none other. It is this perception, which having been mutually recognized and accepted by most sovereigns gives the requisite strength and legitimacy to each sovereign to enforce its legal rules within its territory. However, the case with the cyber world is different as it admits of no territory or polity based borders sufficient to impose a certain set of rules to a certain territorially defined set of persons. This leads each cyber actor to act according to his own legal order (or perhaps no legal order at all), leading to blatant violations of what may be guaranteed rights under other legal regimes. Litigation involving the internet has thus increased as the internet has developed and expanded.6

Johnson, David R. and Post, David G. Law & BordersThe Rise of Law in Cyberspace (1996) 48 Stanford Law Review 1367. 5 Ibid. 6 Supra note 1.

The principle of lex fori is applicable with full force in all mattes of procedure. No rule of procedure of foreign law is recognised. It was held in Ramanathan Chettier v Soma Sunderam Chettier 7 that India accepts the well-established principle of private international law that the law of the forum in which the legal proceedings are instituted governs all matters of procedure. In India, the law of personal jurisdiction is governed by the Code of Civil Procedure 1908 (the Code). The Code does not lay any separate set of rules for jurisdiction in case of international private disputes. 8 It incorporates specic provisions for meeting the requirements of serving the procedure beyond territorial limits. In matter of jurisdiction what is treated differently is the question of subject-matter competence and not of territorial competence, i.e. the question of territorial jurisdiction arises in the same way in an international private dispute as in a domestic dispute. The court provides general provisions regarding jurisdiction on the basis of pecuniary limit, subject matter and territory. Sections 16 to 20 of the Code regulate the issue of territorial jurisdiction for institution of suits.9 Rules as to the nature of suit Based on the subject-matter suits are divided into three classes: (1) suits in respect of immovable property; (2) suits for torts to persons or movable property; and

7 8

AIR 1964, Madras 527. See ss.9 and 15 of the Code of Civil Procedure 1908. 9 Supra note 1.

(3) suits of any other kind. Suits of immovable property must be led within the local limits of whose jurisdiction the property situated. 10 The Code therefore incorporates the principle of lex situs and therefore the property in this section may refer to only property situated in India. Suits for wrongs to persons and movable property may be instituted in the courts within whose local limits the wrong is done or the defendant resides or carries on business or personally works of gain.11 Suits of any other kind are dealt with under s.20 of the Code which is the default rule providing for all others cases not covered by any of the foregoing rules. Under s.20, a court can exercise jurisdiction in actions involving persons where: (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 work; or (b) any of the defendants, where there are more than one, at the time of commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case with the leave of the court has been obtained or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of section wholly or partly arises.

Rules enforcing agreement of parties

10 11

The Code ss.16 and 17. The Code s.19.

It is well-established law in India that where more than one court has jurisdiction in a certain matter, an agreement between the parties to confer jurisdiction only on one to the exclusion of the other(s) is valid.12 The Indian law therefore recognises and gives effect to the principle of party autonomy. However, this extent of autonomy does not travel far enough so as to confer jurisdiction on a court which it inherently lacks.13 Thus the position of law on the point is that rst, a choice of law agr eement is permissible; and secondly, the agreement operates only in respect of a court which does not otherwise inherently lack jurisdiction. In any such case, the courts also consider the balance of convenience and interests of justice while deciding for the forum.14 Thus, in India, the principle is well settled that residence in the territorial limits of a court furnishes a ground for exercise of jurisdiction. Similarly, conduct of business by a defendant in a forum also gives to the forum court to exercise jurisdiction, irrespective of his non-presence within the jurisdiction. The Indian courts also assume adjudicative jurisdiction on the basis of the territorial nexus with the cause of action. In this regard, the consistent view of the courts in India is that the courts are empowered to pass judgments even against non-resident foreigners, if the cause of action arises in whole or part within the territorial limits of the court. 15 The Code also provides for rules and procedure for international service of the processes of the court. However, since the courts in India do not assume jurisdiction, unlike in England, on the basis of service of writ, these provisions are of not much consequence to issues of jurisdiction.

12 13

Hakkam Singh vGammon (India) Ltd AIR 1971SC 740. GM, ONGC, Sibsagam v M/s Raj. Engineering Corp AIR 1987 Cal. 165. 14 Union of India v Navigation Maritime Bulgare AIR 1973 Cal. 526. 15 R. Blainpain and B. Verschraegev (eds), International Encyclopedia of Laws: Private International Law ,The Hague: Kluwer Law International, 2005.

Personal jurisdiction in cyberspace Unfortunately, only a very few cases concerning personal jurisdiction in cyberspace have been decided by the superior courts in India. The reason perhaps is that residents in India have not yet accepted or adapted themselves to this new technology as a t mechanism to undertake legal obligations (coupled with an extremely slow justice delivery system). The approach adopted is similar to the minimum contacts approach of the United States coupled with the compliance of the proximity test of the Code.16 Considering the present rules of international jurisdiction and the tendency of the Indian courts to suitably modify, the existing domestic rules to international situations in other areas of private international law may be analysed. The reaction of the court would much depend on whether the contract contained a choice of court clause or not. Case I: where the contract contains a choice of court clause. In such a case, the Indian courts would normally give effect to such a clause subject only to a survey of forum non conveniens particularly when the same would result in foreclosure of its own jurisdiction.

Case II: where the contract does not stipulate an agreed forum. In a case of this sort, the Indian courts would be inclined to apply the test of s.20 CPC since none of the other provisions seem to be of much assistance. The court would make a twin inquiry: place of habitual residence of the defendant and proximity of the cause of action to the forum, where even an in part cause of action may furnish sufcient basis to exercise jurisdiction. Thus the

(India TV) Independent News Service Pvt Ltd v India Broadcast Live , LLC CS (OS) No.102/2007.

Code provides for the tests of both objectivity and proximity to base its jurisdiction. While the legal system favours exercise of jurisdiction on the basis of proximity of cause of action, its exercise based on the residence of the defendant is also accepted for three reasons: (1) ease of enforcement; (2) compliance with audi alteram partem; and (3) the (draconian) law of contempt of courts in India (as in most other common law countries).17 For the purpose of determining whether the cause of action arose in the local limits of a court, the courts generally go into the question of place of conclusion of the contract. However, it seems that the place of conclusion of contract would not be of much assistance in case of an e-contract. There would be an insoluble confusion between the rules governing completion of communication of offer, acceptance and revocation. The rule in the Bhagwan Dass case18 would neither apply nor lend much support in reaching a reasonable solution in contracts entered into through the internet. Thus the Indian position as may also be inferred from the trend of the Indian courts may be summarised as follows: An Indian court would not decline jurisdiction merely on the ground that the international contract in entered through the internet. It examines the two bases of jurisdiction: domicile of the defendant and proximity to cause of action. Even if one is found to be satised, the Indian court it seems would assume
17 18

Supra note 1. Bhagwan Dass Govardhan Dass Kedia v Purshottam Dass & Co AIR 1966 SC 543.

jurisdiction. However, it would be for the plaintiff to prima facie also convince that the courts elsewhere do not have a better basis of jurisdiction since the Indian courts in such a case may also feel tempted to analyse the issue of jurisdiction from the stand point of the doctrine of forum non conveniens as also anti-suit injunctions and thus decline to exercise jurisdiction even where there existed legal basis to do so.19


The Act talks about the widest jurisdiction power. It aims to bring within the jurisdiction of Indian court any act which is an offence under the Act. Section 1(2) of the Act states that: It shall extend to the whole of India and, save as otherwise provided in this Act, it applies also to any offence or contravention there under committed outside India by any person. Also S. 75 of the Act is widely defined and it extends jurisdiction to any offence or contravention committed outside India by any person. The Section 75 of the Information Technology Act 2000 reads as follows: (1) Subject to the provisions of sub-section (2), the provisions of this Act shall apply also to any offence or contravention committed outside India by any person irrespective of his nationality. (2) For the purposes of sub-section (1), this act shall apply to an offence or contravention committed outside India by any person if the act or conduct


Supra note 16.

constituting the offence or contravention involves a computer, computer system or computer network located in India. Section 75 of the Information Technology Act, 2000 deals with extraterritorial application of the law, the section states that the provisions of the Act will apply to (a)Any person irrespective of nationality (b)An offence or contravention committed outside India The said offence or contravention must have been committed against a computer, computer system or computer network located in India. The Act has therefore adopted the principal of universal jurisdiction to cover both cyber contraventions and cyber offences. It is important to note that the universal jurisdiction over specified offences is often a result of universal condemnation of those activities, and requires co-operation to suppress them, as reflected in widely accepted Cyber Crime Convention.


The Convention on Cybercrime was opened for signature in Budapest, November 23, 2001 and entered into force in 2004. Jurisdiction issues were addressed by this Convention. However, some weaknesses prevent this Convention from being more effective in making international cooperation the solution for cybercrime. As an additional problem, cyber terrorism also became a hazard the international community has to deal with.

No less than five different jurisdiction theories have been applied altogether by courts and governments, all leading to the ascribing of jurisdiction to one court and adversely affecting other courts jurisdiction. An analysis of the several litterae of paragraph 1 of article 22 of the 2001 Budapest Convention on Cybercrime (hereafter the Convention) shows that the Convention relies exclusively on the territoriality and nationality theories to empower parties to establish jurisdiction. According to litterae a to c, any offence established under articles 2 through 11 of the Convention that has occurred in the territory of one Party, in a ship flying its flag or in an aircraft registered under its laws, is to be prosecuted in that State. A Party is, therefore, asked by the Convention to assert territorial jurisdiction if both the person attacking a computer system and the attacked system are located within its territory. The same would be true when the attacked computer system is within a Partys territory, even if the attacker is in another country. Litterae b and c specifically require each Party to establish criminal jurisdiction over offences committed on board of ships flying its flag or aircraft registered under its laws. Already implemented in the laws of many States, this type of jurisdiction assumption is most useful where the ship or aircraft is not located in the Party's territory (or territorial waters/pace) at the time of the commission of the crime. Then, according to littera d, when one national of one State Party commits one of the Convention-laid down offences in another State, the State of nationality of the offender also has to establish jurisdiction provided, however, the target State criminalises the said offence or the offence was committed outside territorial jurisdiction, of any State, v.g. in the High Seas.

Paragraph 4 of the Convention further allows Parties to establish jurisdiction in conformity with their domestic law, which enlarges the base for jurisdiction should a State Party so desire.

The lack of any appropriate legislation has been felt time and again. Cases of cyber frauds are regularly reported from different parts of the country, the most significant chunk being the various Ponzi Schemes which operate stepwise. In the first step people find mails in their inbox which informs them that they have won some lottery or prize, etc from some unknown sender who claims himself/herself to be some authority representing some organization but the condition to obtain the prize money is that the receiver of the mail is asked to pay certain amounts as part of the procedural requirements which is to be deposited through bank transfers. In the next step they are showed some fake award certificates and seals of some government bodies to make the whole transaction look real. Also the promise of confidentiality about the whole process, till it is complete, is taken from the receiver. Once a person falls to the trap and deposits the money asked for neither the person nor his organization can be found or traced. Such cases have mostly been reported from the smaller cities where people tend to get more attracted by such lucrative schemes. The law however is silent on such cases as the fraudsters cannot be traced, not even one of culprits involved, of the numerous incidents reported so far has been caught. Executive takes the plea of lack of technologically advanced resources and even if they succeed initially then there is no concrete law which can ensure that the guilty would be caught irrespective of territorial borders. The law dealing with

cyber fraud is, however, not adequate to meet the precarious intentions of these fraudsters and requires a rejuvenation in the light and context of the latest developments all over the world. The laws of India have to take care of the problems originating at the international level because the Internet, through which these activities are carried out, recognises no boundaries. A country may employ enforcement measures against a person located outside its territory on the grounds of reasonable circumstances to press charges, opportunity to be heard, courts having jurisdiction and principle of natural justice. So far no treaty or global organizations have been able to formulate uniform policy acceptable to the global forum. The task of the inventors is to develop new technologies. On the other side, there are criminals who use those technologies for commission of more advance crimes. Legislatures, Executive and Judiciary are trying to control such crimes. It is a circle, and in between, it is the society who suffers. Society suffers sometimes with terror- as a new invention springs up, then with distrust- when the invention is used for anti-social activities and then with the hope as the law will catch holds the wrongdoers. As the wheels of justice become operational, such unsociable activities though cannot be eradicated fully are forced to reduce. To think that cybercrimes could be fully curbed- is fighting against reality, against the inevitable, that it cannot by removed/curbed fully. Legislators have taken a great step forward by enacting the IT Act 2000. Now its a time for its proper implementation.

BIBLIOGRAPHY Law Relating to Computers Internet and E Commerce by Nandan Kamath Moore, R. (2005) "Cyber crime: Investigating High-Technology Computer Crime," Cleveland, Mississippi: Anderson Publishing. Indian Laws on Internet by Ashok Srivastava An Introduction to Cyber Crime and Cyber Law by R.K Chaubey. Sachdeva, International Jurisdiction in Cyberspace Johnson, David R. and Post, David G. Law & BordersThe Rise of Law in Cyberspace www.lawinfo.net www.legalservicesofindia.com www.lawyerscourt.com