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TITLE- CRITICAL ANALYSIS OF THE ISSUE OF JURISDICTION IN

CYBER-CRIMES AND THE EFFICACY OF APPLICATION OF THE


UNIVERSALITY PRINCIPLE OF JURISDICTION

SUBMITTED BY

Sanjana S Rao
1316247
9BA.LLB C

GUIDED BY:
Ms. Diya C.R
Assistant Professor
School of Law
Christ University

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TABLE OF CONTENTS

Chapter 1: INTRODUCTION…………….....……………………………………………....4
1.1 Introduction………………………………………………………………………………..4
1.2 Statement of Problem………………………………………………………………………5
1.3 Research Question…………………………………………………………………………5
1.4 Research Methodology…………………………………………………………………….6
1.5 Objective of study………………………………………………………………………….6
1.6 Significance of study……………………………………………………………………….7
1.7 Chapterisation plan…………………………………………………………………...……7

Chapter 2: LITERATURE REVIEW………………………………………...…………......9


2.1 Articles……………………………………………………………………………………9

Chapter 3: DEFINITION AND SCOPE OF JURISDICTION ………………………….


3.1 Introduction…….…………………………………………………………………………...
3.2 Principles of Jurisdiction …………………….…………………………………………….
3.3 Theories of Jurisdiction …………………………………………………………………….
3.3.1 Territoriality Principle….…..……………………………………………………………..
3.3.2 Nationality Principle...…..………………………………………………………………...
3.3.3 Protective Principle ………………………………….……………………………………
3.3.4 Passive Nationality ……………………………………………………………………….
3.4 Failure of traditional principles of Jurisdiction ……………………….…………………..

Chapter 4: EVOLUTION OF JURISDICTION IN VARIOUS COUNTRIES …………


4.1 Introduction………………………………………...……………………………………….
4.2 USA…………... ……………………………………………………………………………
4.2.1 Minimum Contacts Test ………………………………………………………………
4.2.2 Purposeful Availment Test ……………………………………………………………….
4.2.3 The Zippo ‘sliding scale’ test……………………………………………………………..
4.2.4 The Effects Test and ‘Intentional targeting’……………………………………………...
4.2.5 Difficulties in the application of the three tests………………………………………….,

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4.3 Canada ……………………………………………………………………………………..
4.4 United Kingdom……………………………………………………………………………
4.5 India ……………………………………………………………………………………….
4.5.1 Code of Criminal Procedure, 1973……………………………………………………….
4.5.2 Information Technology Act 2000……………………………………………………….
4.6 International Conventions………………………………………………………………….

Chapter 5: UNIVERSALITY PRINCIPLE AND ISSUES IN RELATION TO


ENFORCEMENT…..…………………………………………………………………………
5.1 Issues in relation to Enforcement………………………………………………………..….
5.2 Yahoo! Inc. v. LICRA……………………………………………………………………….
5.3. Universality Principle………………………………………………………………………
5.3.1 Scope of the Universality Principle….………………………………………………….....
5.3.2 Applicability of Universality Principle to Cyber-crimes…………………..........................
5.3.3 Efficacy of Universality Principle as a deterrence to Cyber-crimes……………………….
5.3.4 Drawbacks and criticisms to application of Universality Principle………………………..

Chapter 6: CONCLUSION AND SUGGESTIONS


6.1 Conclusion…………...……………………………………………………………………...
6.2 Suggestions………………………………………………………………………………….

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CHAPTER 1
INTRODUCTION

1.1 INTRODUCTION
In today’s world, the internet has revolutionised, its reach far more than any other form of
communication. But with this novelty also comes great risks, where this boon called the
internet can also be misused, giving rise to many criminal activities and instances of abetment
of criminal activities which have to be regulated. The basic nature of the internet is that it is
endless and has no boundaries. This is a primary characteristic of the internet and poses as a
severe problem when one speaks of the issue of jurisdictions.

Jurisdiction is the concept where by in any legal system, the power to hear or determine a
case is vested with the appropriate court. The main problem of cyber law jurisdiction is the
presence of multiple parties in various parts of the world who have only virtual nexus with
each other. Then the problem of place is raised that where the party wants to sue and what
remedy is available to him?

The inability of countries to effectively regulate the transactions on the internet originating or
ending within their territories stems from the nature of the technology itself. While countries
can seek to enforce their respective laws within their physical, geographical and political spaces
delineated on an atlas, a borderless cyberworld, controlled by technology that is constantly
changing, throws up several challenges. Even while it was thought that one could fix the
physical location of the computer from where the transaction originates and the one where it
ends, that too can be bypassed or ‘masked’ by technology. Thus, the applicability and
effectiveness of our existing laws need to be constantly reviewed so that we can ably face the
risks at present as the issues of jurisdiction and sovereignty become more and more relevant.
The Internet does not tend to make geographical and jurisdictional boundaries clear, but
Internet users remain in physical jurisdictions and are subject to laws independent of their
presence on the Internet. As such, a single transaction may involve the laws of at least three
jurisdictions:
a. The laws of the state/nation in which the user resides
b. The laws of the state/nation that apply where the server hosting the transaction is
located, and

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c. The laws of the state/nation which apply to the person or business with whom the
transaction takes place.

Thus, the author proposes the application of Universality Principle to deal with the issues that
arise from determining Jurisdiction. Jurisdiction is an aspect of State sovereignty and it refers
to judicial, legislative and administrative competence, in the case of cyber-crimes and although
jurisdiction is an aspect of sovereignty, it is not coextensive with it. Just because a country has
its sovereignty (both internal and external) intact does not mean it has unlimited jurisdiction
over all sorts of issues. The current international law limits a state’s right to exercise
jurisdiction. This makes international cooperation a prerequisite in order to tackle the issue of
Jurisdiction. International cooperation however must have the backing of the law and thus, the
principle of universal jurisdiction in respect to certain cyber-crimes and cyber terrorist
activities can be an effective way to ensure cooperation for the same.

1.2 STATEMENT OF PROBLEM


The issue of jurisdiction with reference to cyber-crimes is extremely relevant in today’s
interconnected world where distances are being closed with the help of technological
innovation and advances. In this scenario, there is a scope of misuse of the same and the law
must constantly evolve to provide suitable remedies. Due to the transnational nature of
cybercrimes, it becomes extremely important to establish the extent and scope of jurisdiction
of nations. Currently, there are several lacunae’s in the law not only in India but at the
international sphere as well whereby several crimes are not dealt with, due confusion and
insufficient authority to adjudicate. Thus, the author aims to address these various issues and
propose certain solutions for the same.

1.3 RESEARCH QUESTIONS


The author through this research tries to find out the answers for the following questions:

1. Whether the current laws relating to Jurisdiction of cyber-crimes are effective and efficient?

2. Whether the Universality Principle can be applied to the law governing Jurisdiction of
cyber-crimes?

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1.4 RESEARCH METHODOLOGY
The author adopts ‘Doctrinal method’ to present the position of law in India and other countries,
relating Jurisdiction in respect to Cyber Crimes, with the support of significant judicial
decisions of court in India and other countries. ‘Analytical method’ is employed to critically
analyse the effectiveness of the current law and in India and other countries. The author seeks
to appreciate the standards set and the principles formulated in other countries, particularly in
United States. In the concluding part of the paper, the applicability of the principle of
Universality is analysed and appreciated, and further suggestions are made in order to tackle
the issue.

1.5 OBJECTIVE OF STUDY


1. To accentuate the lacunae in law with respect laws relating to Jurisdiction of cyber-crimes.

2. To critically analyse the application of the principle of Universality to the current legal
regime governing Jurisdiction of cyber-crimes.

3. To suggest a reform in the current position of law in India as well as the International sphere.

1.6 SIGNIFICANCE OF STUDY


This research will be beneficial in understanding the current position of the law as well as the
judicial trends in respect to jurisdiction of cyber -crimes and its implications. Since there is a
lacuna in law on this subject, the present study can be used for the benefit of policy makers as
a guide to ascertain the future discourse of law in this regard.

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1.7 CHAPTERISATION PLAN
Chapter 1: Introduction
Under this chapter the author attempts to present the need for better laws due to the emergence
of cyber space and with it the increase of cyber-crimes. The author further shall point out the
unique nature of cyber-crimes and the inadequacy of the present legal regime.

Chapter 2: Literature Review


This chapter provides for the review of the literature or scholarly articles that the author has
relied on to work on this paper.

Chapter 3: Definition and Scope of Jurisdiction


Under this chapter the author lays down the various principles and theories relating to
jurisdiction, traditionally applied in Indian as well as International law, as well as an analysis
of the effectiveness of the same in respect to Cyber-crimes.

Chapter 4: Evolution of Jurisdiction in Various Countries


This chapter shall provide a layout regarding the various judicial trends and decisions by the
Courts in respect to the authority and Jurisdiction that the Court has in respect to transnational
cyber-crimes, followed in common law countries such as the USA, UK and Canada as well as
India. The various tests determined by the Courts such as the Minimum contacts test, Zippo
sliding scale test, Purposeful Availment test and Effects test shall be analysed in detail along
with landmark judgements.

Chapter 5: Universality Principle and Issues in Relation to Enforcement


This chapter shall analyse the Enforcement issues of cyber-crimes and shall also present the
merits of applying the principle of Universality in International law to deal with jurisdiction of
transnational cyber-crimes. The cases of case of Filartiga v. Pena-Irala, and Attorney-General
v. Eichmann shall be discussed along with the Draft Code of Crimes against the Peace and
Security of Mankind by the International Law Commission in 1996.

Chapter 6: Conclusions and Suggestions


This chapter shall consist of the suggestions to dealing with the issues highlighted by the author
and shall also include the concluding remarks.

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CHAPTER 2
LITERATURE REVIEW

2.1 ARTICLES

1. Justice S. Muralidhar, Jurisdiction Issues in Cyberspace, Indian Journal of Law and


Technology, Volume 6, (September 2010), pp 1-43:
This article traced the difficult and different paths that common law courts traversed in trying
to formulate a definitive test which would lend legal certainty in tackling the complex problem
of courts exercising jurisdiction in disputes arising out of activities on the internet. The author
proposes that several of the tests provides may be ineffective in conclusively dealing with the
situation and may lead to unfair and biased decisions. The problem is perhaps compounded by
the fact that the technology which is rapidly changing is at least two steps, if not more, ahead
of the law. The ‘catch up’ by the law appears as of now a mirage. The author also attempts to
deal with the vast dimensions of enforcement of decisions relating to cyber-crimes by
highlighting various landmark cases specifically dealing with the case of Yahoo! Inc. v.
LICRA.

2. Kelly A. Gable, Cyber-Apocalypse Now: Securing the Internet against Cyberterrorism


and Using Universal Jurisdiction as a Deterrent, 43 Vand. J. Transnat'l L. 57, 118 (2010):
The author opines that Cyberterrorism has become one of the most significant threats to the
national and international security of the modern state. The primary security threat posed by
the Internet is caused by an inherent weakness in the TCP/IP Protocol, which is the technology
underlying the structure of the Internet and other similar networks. This according to the author
is due to the underlying structure enables cyberterrorists to hack into one system and use it as
a springboard for jumping onto any other network that is also based on the TCP/IP Protocol.
In the absence of feasible prevention, deterrence of cyberterrorism may be the best alternative.
Without, at a minimum, a concerted effort at deterrence, cyberterrorism will continue to
threaten national and international security. Thus, according to the author, the most feasible
way to deter cyberterrorists is to prosecute them under the international law principle of
universal jurisdiction.

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3. Paul N. Stockton & Michele Golabek-Goldman Prosecuting Cyber-Terrorists: Applying
Traditional Jurisdictional Frameworks to a Modern Threat, Stanford Law and Policy
Review, Volume 25, 2014, pp. 211-268:
The authors explore the legal issues that arise out of the prevalence and perpetration of
cybercrimes and cyber terrorism in the world over. They also discuss the inefficiency of the
traditional principles of jurisprudence, discussing in detail the frailty of the territoriality
principle in dealing with jurisdictional concerns in respect to cyber terrorism. The authors
further highlight the application of the Universality Principle and discuss its various drawbacks,
specifically citing the case of Filartiga v. Pena-Irala, 1 and Attorney-General v. Eichmann.2

4. David R Johnson and David G. Post, “Law and borders – The rise of Law in Cyber
space”, Stanford Law Review, Vol. 48, p. 1367, 1996:
The author explores the need to formulate a separate doctrine to govern the cyberspace.
According to the authors, the geographically devised legal territorial borders make sense in the
physical world but the cyberspace transcends these borders placing the power of sovereignty
in jeopardy. The application of traditional territorial doctrine to the cyberspace with unresolved
territory would raise many jurisdictional and substantive law issues. The issue can be tackled
by recognising cyberspace as a distinct “place” for purposes of legal analysis by recognising a
legally significant border between cyberspace and the “real world”. The authors assert that one
can reconcile the new law created in this space with current territorially based legal systems by
treating cyber jurisdiction as a distinct doctrine.

5. C. Satapathy, Issue of Jurisdiction in Combating Cyber Crimes: Issues and Challenges,


Economic and Political Weekly, Vol. 35, No. 39 (Sep. 23-29, 2000), pp. 3493-3497:

The author makes an analysis of the efforts made by courts in different countries to ‘localise’
issues relating to cyber-crimes in the process of exercising personal jurisdiction over
defendants located outside their territories. The author also highlights the anxiety of countries
and their courts to protect local citizenry from commercial or content based harm while at the
same time not wanting other countries to exert the same authority over its citizens. Keeping
this in view he analyses several important cases and landmark judgements in India as well as

1
Filartiga v. Pena-Irala, 577 F. Supp. 860, 863 (E.D.N.Y. 1984)
2
Attorney-General v. Eichmann, I.L.R. 18, 26 (Dist. Jerusalem 1961) (Isr.), aff’d, 36 I.L.R. 277 (S. Ct. 1962).

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internationally, highlighting the constant evolution of the cyber space and the need for laws
that have transnational jurisdiction and international cooperation as key features.

6. Dan Jerker B. Svantesson, An Introduction to jurisdictional issues in cyberspace, Journal


of law, information and science, Volume 15(1), pp 50-74:
The author examines the issues associated with the application of the elements of traditional
private international law such as jurisdiction, choice of law, the courts option of declining
jurisdiction, recognition and enforcement, to online activities. Every State makes rues of
private international law to provide for any claims arising within the physical boundaries of its
territory. In the vent of cross-border dispute, the problem pertains to recognition of the
judgement given by the court and its enforcement. The author perceives that in the absence of
international agreements on these issues rules of private international law must include
provisions to deal with the jurisdictional and legislative claims over online transactions.

7. Armando Cottima, Cybercrime, Cyberterrorism and Jurisdiction: An Analysis of Article


22 of the COE Convention on Cybercrime, European Journal of Legal Studies, Volume
15, Issue 10:
The author points out that due to cyber-crimes occurring outside the borders of one State, it
results in scattering crime scenes through two or more countries, sometimes in more than one
continent, and solutions to the problems posed must be addressed by international law, through
the adoption of adequate international legal instruments. Jurisdiction issues addressed by
present conventions including Convention on Cybercrime, have some weaknesses and prevent
them from being more effective in making international cooperation the solution for
cybercrime. As an additional problem, cyberterrorism also became a hazard the international
community has to deal with.
The initial concern of the author is the analysis of the Convention on Cybercrime, first
discussing general jurisdiction theories and then the theories applied by the Convention,
together with other issues dealt with in the article. He further proceeds with a discussion of
several cases dealing with jurisdiction, international cooperation and cybercrime and some
reflection on cyberterrorism and the applicability of the jurisdiction rules of the Convention on
Cybercrime in cyberterrorism cases.

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8. Yulia A. Timofeeva, Worldwide Perspective Jurisdiction in Internet Content
Controversies: A comparative analysis, 20 CONN. J. INT'L L. 199, 214 (2005):
The article discusses the various principles adopted by countries to deal with extraterritorial
jurisdictional issues. The article discusses the limitations, which are specific to the internet.
She opines that an international agreement on jurisdiction in Internet-related issues would be
the best solution.

9. Beverly Earle and Gerald A Madek , International Cyberspace : From borderless to


Balkanised, Georgia Journal of International and Comparative Law, Volume 30(2), 2003,
pp -225-263:
The author highlights the importance of jurisdiction in the borderless cyberspace. They suggest
that there is a need for a national consensus on regulation of cyberspace before an international
consensus is reached. They believe that technology advancements can also circumvent the
problems that are created by it.

10. “Cyberspace, Sovereignty and Jurisdiction” by Georgios I Zekos, The IUP Journal of
Cyber Law, IJCL10502, 2003:
The author emphasizes the need for revision of the meaning and substance of jurisdiction and
sovereignty of cyberspace. Cyberspace can have its own territory but it cannot exist outside the
State sovereignty. The author believes that by integrating the cyberspace territory with the State
territory, and State sovereignty with cyberspace sovereignty, Sate cyberspace sovereignty can
be created. There is a need for the establishment of cyber courts and tribunals with well-defined
jurisdiction. In such a case, universal cyberspace jurisdiction will enable the courts to decide
and enforce the foreign judgments.

2.2. BOOKS
1. S. K Verma and Raman Mittal, Legal Dimensions of Cyberspace, Indian Law Institute,
New Delhi, 2004:
The authors illustrate the various theories and principles of traditional jurisprudence followed
under international law and also state the applicability of the same in relation to the cyber
space. The book also illustrates the various stands and test followed by Courts in countries
such as the USA, the European Union and Canada. The authors also lay down the laws laid

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down in India in respect to the authority of courts to adjudicate matters relating to cyber-
crimes.

2. C Vidya, Cyber Jurisdiction: A legal Vision , Amicus Books: ICFAI University Press,
Hyderabad, 2007:
The author suggests that the issue regarding jurisdiction can be confronted by bringing
coherence between independent judicial bodies to establish standard forms of jurisdiction.
Law-making and jurisdiction of cyberspace face new challenges because the changing facets
of the judicial system throughout the world. The author suggests that the relationship between
physical location and legally defined online information calls for an in-depth conceptual
understanding of jurisdiction in cyberspce.

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