This article has been written by Ms. Panya Sethi, a third year BBA.LL.B student of Symbiosis Law School, Noida.

INTRODUCTION

This article focuses on the meaning of cyberspace and jurisdiction, theories pertaining to jurisdiction, the statutory framework pertaining to cybercrimes in India, the comparative analysis of cybercrime in India and the issues pertaining to jurisdiction with respect to cybercrimes around the world and in India.

CYBERSPACE

The term “cyberspace”— (A) refers to the interconnected system of IT infrastructures; and (B) Embedded processors and controllers are a part of this, along with the Internet and other forms of networked computing. The term “jurisdiction” refers to the state’s ability to legislate, adjudicate, and enforce rules governing its citizens’ actions. This unit focuses only on the judicial authority granted by the State to decide disputes and establish legal obligations between parties.

JURISDICTION

The term “jurisdiction” refers to the state’s ability to control its citizens’ actions via the use of laws, courts, and police. This article explores the judicial authority established by the State to decide disputes and determine legal obligations. What we mean when we talk about “cyber jurisdiction” is simply applying the norms of traditional jurisdiction to the digital realm. There are no physical (national) frontiers in cyberspace. It is a dynamic, ever-expanding, exponentially increasing area. Anyone, wherever, can visit any website with only the click of a mouse. Any user who does business with one of these websites is bound by the terms of service, privacy policies, and disclaimers posted on that website, each of which is governed by the laws of the country in which that website is based. And in the event of a disagreement, “private international law” may be used.

“CYBERCRIME

Cybercrimes can be broadly categorized into two kinds: 

1) Where traditional crimes such as theft, forgery, defamation etc. are committed electronically. 2) where a computer itself is attacked. 

● The Indian Penal Code (IPC) and the Information Technology Act, 2000 (IT Act) both contain the substantive provisions relating to cybercrimes.

ISSUES RELATED TO CYBERCRIME”

Laws originally enacted to punish crimes done in the physical world have been interpreted to encompass cybercrime, and new laws have been passed to outlaw it entirely. However, existing laws may not apply to cybercrime because they were written before the Internet and digital technologies became commonplace, or because they were not drafted with modern technologies in mind. If this is the case, then criminals who target ICT and/or utilize it to facilitate crime may be able to sidestep the impacts of laws enacted to combat traditional forms of crime. Given this, it is possible that cybercrime-specific legislation is required. The necessity for legislation against cybercrime “varies with the specifics of particular offenses and the breadth of national laws.” (UNODC, 2013, p. 52).

For example, in a 2013 case of picture-based sexual abuse (commonly referred to as “vengeance pornography”), the perpetrator could not be prosecuted under New York’s current regulations because of the nature of this form of cyberharassment, which involves the “non-consensual creation, dissemination, and danger to convey bare or sexual pictures” (Henry, Flynn, and Powell, 2018, p. 566) and is intended to cause “In one case, the offender sent naked photos of his then-girlfriend to her sister and her place of employment, and he also posted them on Twitter. ( People v. Barber, 2014). 

For instance, if a user commits a robbery in Country A while physically located in Country B and accessing a Server located in Country C, the question of whose legal system would apply must be addressed. Even if the transaction took place online, all parties involved are still subject to the laws of the countries in which they now reside, and the court will often exercise its authority over the nation in which the underlying crime was committed.

An online transaction often involves a user, a server host, and the other party, all of whom must be brought under the same legal system. When it comes to legal disputes that arise online, problems of jurisdiction center on whether or not the laws of country ‘A,’ ‘B,’ or ‘C’ will take precedence, whether or not local laws will be relevant, and whether or not international laws will apply. On the other hand, there is the issue of whether or not a certain court has the jurisdiction to hear a case involving many states.

ISSUE OF JURISDICTION IN INDIA

The Information Technology Act of 2000 appears comprehensive when it comes to adjudicating matters in which all parties are Indian citizens and the offense or contravention occurred in India (in accordance with the lex foris principle, or “law of the country”), but it still causes confusion when it comes to exercising India’s extraterritorial jurisdiction over offenses that occurred outside India or were committed by foreign nationals. If, for example, an American citizen harmed the image of an Indian politician by posting sexist remarks online and the politician sought redress in an Indian court, the court would have no jurisdiction. It is true that the Information Technology Act of 2000 (IT Act) allows for extraterritorial jurisdiction, but it is unclear how successful it would be to prosecute a U.S. citizen in India for cyber defamation under the IT Act, given that the IT Act does not apply to U.S. citizens.

The problem of jurisdiction is one of the most important problems in the IT industry that has not been properly addressed in the act. Sections 46, 48, 57, and 61 of the IT Act, 2000 all make reference to jurisdiction in relation to the Act’s adjudication process and related appeal procedure. The police have the authority to enter and search any public area to investigate a possible cybercrime, as described in Section 80. Section 13(3) and (4) address the potential jurisdictional difficulties surrounding electronic records by addressing the physical locations of electronic record dispatch and reception. Section 75 applies to acts of crime or breaches that occur outside of India. Without regard to the person’s nationality, the provisions of this act apply to any crime or violation committed outside of India by any individual, subject only to subsection (2).

The issue of cyberthreat deals with incidents of cyber-crimes, which range from relatively small offenses like identity theft to more severe ones like unlawful gambling, cyber bullying, cyber stalking, cyber defamation, web jacking, and data diddling, however these issues raise the question of jurisdiction. Since there is no physical barrier to cyberspace, thieves may theoretically break into the system using computers or other electronic equipment from anywhere in the globe.

JURISDICTION UNDER CODE OF CIVIL PROCEDURE CODE, 1908 

A court has adjudication jurisdiction if it has the authority and capacity to make a ruling on a case. The court’s decision will be affected by the nature of the dispute, its monetary worth, and the jurisdiction in which it arises. In most cases, a court will have jurisdiction over an action if the defendant has some physical presence in the forum state. The CPC codifies the Indian court’s authority over both domestic and foreign components of disputes. When it comes to determining where a case may be filed, the Code of Civil Procedure (1908) breaks it down into Chapters 15 through 20, with Chapter 20 covering any kind of litigation that is not covered by Chapters 15 through 19.

Sections 16–18 of the Code deal with territorial jurisdiction in regards to movable and immovable property. When dealing with movable property, the rule of jurisdiction is often tailored to the interests of the defendant, whereas the lex situs rule (the law of the forum in which the property is located) takes precedence when dealing with immovable property. Case laws involving the internet have provided guidance for the interpretation of Section 20 of the Code, which deals with issues of foreign jurisdiction.

STATUTORY FRAMEWORK OF CYBER CRIME IN INDIA

Some of the penal provisions under the IT Act, 2000 are : 

a. Damage to computers/ computer systems- Section 43 of the IT Act 

b. Data theft and Hacking- Sections 66B to 66D of the IT Act contain provisions pertaining to offenses ranging from identity theft to violation of privacy 

c. Cyberterrorism- the provision is penalized under Section 66 F of the IT Act 

d. Obscenity- Section 67 of the IT Act penalizes publishing or transmitting of obscene material in electronic form. 

e. Child pornography or child sexually abusive content – is punishable under Section 67 B of the IT Act.

IPC also contains certain provisions that could extend to cybercrimes, some of which are: 

a. Obscenity – u/s. 292 to 294 

b. Stalking which included cyberstalking – u/s. 354D 

c. Cyber frauds – u/s. 420 

d. Email spoofing – u/s. 463 

e. Defamation through email – u/s.499 

f. Various kinds of harassment and intimidation are covered – u/s. 503 to 507

Corresponding Provisions in CrPC” 

Under addition, the jurisdiction of the Court is addressed in Sections 177 to 189 of the Criminal Procedure Code.

According to Section 177, a criminal case must be brought before the court having jurisdiction over the location where the crime was committed.

Section 179 : If something was done and the result was illegal, the crime may be investigated and prosecuted in the court with jurisdiction over either the original conduct or the resulting legal ramifications.

Section 182  mandates that any case involving cheating through electronic means be brought before the court in the jurisdiction where the relevant communications were delivered or received. While the crime itself may have been committed in another jurisdiction, the local court that serves the offender’s home address may nonetheless investigate the incident as if it were done within that court’s jurisdiction.

Section 188 incorporates provisions that is in line with the nationality concept of jurisdiction, which provide that a citizen of India who commits a crime outside of India shall be subject to the jurisdiction of the courts in India. But in the aforesaid scenario, the court may only exercise jurisdiction if the criminal is brought inside State borders.

CYBER JURISDICTION- NATIONAL, TRANSNATIONAL OR INTERNATIONAL

 

1. 1. NATIONAL CRIMES

The courts inside a country have national jurisdiction if and only if such authority is granted by domestic law.

If a crime is considered a federal offense, the federal government is responsible for prosecuting those who commit it and issuing the ultimate punishment. The courts in India would have national jurisdiction over any violations of the Information Technology Act of 2000.

 

2. 2. TRANSNATIONAL CRIMES

Given that a hacker in the United States may access a computer in London and steal its data, it is safe to assume that many cybercrimes are international in scope. 

 

3. 3. INTERNATIONAL CRIMES

 

• • Cybercrime may have a global impact, and it can be difficult to tell it apart from transnational crime.

• • However, the Rome Statute for the International Criminal Court does not include cybercrimes in its definition of “International Crimes.”

TYPES OF JURISDICTIONS

 

1. 1. Subject Matter Jurisdiction empowers the court to consider cases within a certain category and determine whether or not the claim may be brought before that court.

 

2. 2. Personal Jurisdiction permits the court to rule on cases involving inhabitants or persons of its territory, the person having some connection to that area regardless of where the person is now situated. Those who live inside a certain state’s borders are subject to that state’s “personal jurisdiction.”

 

3. 3. Pecuniary Jurisdiction – Typically, monetary issues are the primary focus of this sort of jurisdiction. Any damages claimed in a lawsuit must be within the monetary limits of the court. A court will only hear a matter up to a particular value; anything over that will be sent to a higher court. In India, disputes involving more than one crore rupees are addressed by the Public Buyer Dispute Redressal Commission, whereas disputes involving more than twenty million rupees but less than one crore are handled by the State Shopper Question Redressal Commission. It has a hierarchical structure that changes depending on the kind of claim that is being made in the proceedings.

This action must be filed in the lowest level court. As a procedural norm, it does not impact a court’s ability to exercise jurisdiction over a given matter, making a violation of this rule a mere technicality under section 90 of the CPC rather than a criminal offense. Not the court’s decision amount, but rather the plaintiff’s appraisal done in the plaint, will be taken into account. In most cases, the court will uphold the plaintiff’s estimate of the value of the case.

THEORIES OF JURISDICTION TO PRESCRIBE

 

1. 1. SUBJECTIVE TERRITORIALITY

If the act occurred inside the boundaries of the forum state, then the forum state will have jurisdiction over the matter. Section 2 of the IPC, which deals with the punishment of crimes committed inside India, reflects this principle. According to the subjective component of territorial jurisdiction, a sovereign has the authority to enact criminal laws that apply to acts committed inside his territory’s boundaries. Given the inadequacy of state-level adjudication, several countries now use the subjective territorial concept to bring foreign criminals into the jurisdiction of their own laws. This concept broadens a state’s authority over conduct that begins inside its borders but moves outside of them to be finalized or consummated.

 

2. 2. OBJECTIVE TERRITORIALITY

Where the major impact or consequence of an action occurs inside the forum state even though it occurred outside of its boundaries. The effects theory is the basis for Indian courts’ jurisdiction, as stated in Section 179 of the Code of Criminal Procedure.

 

3. 3. NATIONAL TERRITORIALITY

If a citizen of a state commits a crime abroad that is punished under domestic law, the state may and will impose the full weight of that crime’s sanction on the perpetrator.

JUDICIAL PRECEDENTS

 

1. 1. INDIA TV INDEPENDENT NEWS SERVICES PVT LIMITED VS INDIA BROADCAST LIVE LLC AND ORS

Facts– The US Supreme Court’s “effect test” was used. This lawsuit involves the March 2004 debut of the top Indian television network, INDIATV. The plaintiff claims it began using the mark on December 1, 2002 and filed an application to register it on January 22, 2004. In 2006, the mark was issued with no opposition within the required time frame. The webpage was uncovered by the plaintiff during her online investigation. In order to prevent the defendant from using the mark in the future, the plaintiff sued the defendant in court. Defendant argued that the court lacked authority to hear their case since they are an American corporation and have no links to India.

When the Indian court realized that its geographical boundaries prevented it from using the usual jurisdictional rules, it turned to the relevant jurisdiction rule in the United States.

 

2. 2. AJAY AGGARWAL V. UNION OF INDIA 1993 AIR 1637 

The appellant was a non-resident Indian (NRI) living in Dubai who, together with four others, conned and misled Chandigarh Bank into issuing fraudulent international letters of credit. It was decided that misleading the bank is a criminal offense. Sections 179 and 182 of the Criminal Procedure Code establish jurisdiction over a noncitizen (CrPC). 

 

3. 3. SUPER CASSETTES INDUSTRIES LTD V MYSPACE INC AND ANOTHER

Issues of copyright, cyber law, and international jurisdiction are at the heart of the case of Super Cassettes Industries ltd. v. Myspace Inc. & others. Myspace, a website based in the United States, was the target of a lawsuit brought by the plaintiff to halt copyright infringement, recover damages, and other relief. Myspace, the defendant, has objected to the court’s ability to hear the case on the grounds that (1) the defendant is domiciled and doing business outside the jurisdiction of this court (the United States) and (2) the underlying event giving rise to the lawsuit did not take place inside India. The court’s interpretation of the jurisdictional provisions of the Copyright Act and the Code was comprehensive. According to the court, the plaintiff-focused jurisdictional provision may apply in addition to the Code’s own provisions thanks to the non obstante phrase, which it found in Section 62 of the Copyright Act. The justifications in Section 20 of the Code of Civil Procedure are in addition to this.

Section 20 CPC’s regulation is not inviolable and is subject to local ordinances. However, if local law contradicts or otherwise supersedes the Private International Law principles, then local law will be applied. The jurisdictional provisions of the Copyright Act of 1957 take precedence over those of the Code of Civil Procedure in this instance. The Court determined that India is the proper venue for this case since it is where the alleged injury occurred.

CONCLUSION

This essay aspires to examine the problem of cyberspace jurisdiction in India and elsewhere. Jurisdictional theories, including subject matter jurisdiction, pecuniary jurisdiction, and national jurisdiction, as well as judicial precedents examining how judges have used their minds in determining judicial precedents, are the main topics of this article. It should be noted that in addition to Section 4 of the Indian Penal Code, 1860, there are provisions in both Section 1(2) of the Information Technology Act, 2000 and Section 75 of the Act that deal with the extraterritorial application of the legislation. In addition, the Code of Civil Procedure Code, 1908 specifies where a lawsuit must be filed in regard to geographical jurisdiction, which includes movable and immovable property, and circumstances where the plaintiff and defendant dwell.

REFERENCES

 

1. 1. https://udrc.lkouniv.ac.in/Content/DepartmentContent/SM_cd8441f8-76c2-495f-8ad6-ead3d120fb0f_30.pdf 

 

2. 2. https://www.unodc.org/e4j/en/cybercrime/module-3/key-issues/intro.html 

 

3. 3. https://lawbhoomi.com/jurisdictional-aspects-in-cyber-law-and-information-technology-act/#_ftn2 

 

4. 4. https://www.legalserviceindia.com/legal/article-3329-analysis-of-cyber-jurisdiction-in-india.html 

 

5. 5. https://www.latestlaws.com/articles/how-to-file-a-civil-suit-under-code-of-civil-procedure-by-aakanksha-derashree 

 

6. https://nja.gov.in/Concluded_Programmes/2022-23/P-1299_PPTs/2.Jurisdictional%20Issues%20in%20Adjudication%20of%20Cyber%20Crimes.pdf