Cyberspace

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 presentation proposes a treaty based international harmonization 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 civilization.

CYBER LAW INDIAJurisdiction

Section 1 (2) This Act 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.

Section 75. Act to apply for offence or contravention commited outside India. (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 constituting the offence or contravention involves a computer, computer system or computer network located in India. Prescriptive jurisdiction

ISP is representing interactive network service. It may provide access to internet or offer to a range of additional resources.
6

Nature of ISP:
It

is an important link to the WWW. It helps in the transmission, distribution, publication and creation of an interactive world for all the subscribers. These may act as information carrier or information publisher or both.
7

Contd

is the one who is providing with the medium which helps in access of information in electronic form. Its functions include: 1. To provide access to network 2. To act as an intermediary.
8

ISP

Contd
Network

access service provider could be in form of dial up, broad band, satellite, microwave or any other communication media. Not all intermediary are network service provider. Like the search engines they act as intermediary but are not service provider.
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When can be ISP held liable to any act:

When

ISP knows or had reasons to believe that information is unlawful. It receives some benefit due to transmission of information. There is no reasonable steps taken from the ISP to determine the nature of information.
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Indian scenario with IT Act:

Section

aspect. The ISP should have no knowledge of the matter that is transmitted. Had exercised all due diligence at time of transferring and transmitting information. If these two aspects are absent there is absolute liability of ISP which lies.
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79 of the Act covers this

Sec 4(3) IPC

Any person in any place without & beyond India committing offence targeting a computer resource located in India.

CEO of Baazee.com was arrested in December 2004 because a CD with objectionable material was being sold on the website. The CD was also being sold in the markets in Delhi. The Mumbai city police and the Delhi Police got into action. The CEO was later released on bail. This opened up the question as to what kind of distinction do we draw between Internet Service Provider and Content Provider. The burden rests on the accused that he was the Service Provider and not the Content Provider. It also raises a lot of issues regarding how the police should handle the cyber crime cases and a lot of education is required. Applicability of section 79

Bazee.com case

Criminal Aspect
Indian Penal Code, 1860 (IPC) Certain provisions of the IPC also suggest applicability of its provisions to illegal actions committed outside India. Section 3 of the IPC reads as: Punishment of offences committed beyond, but which by law may be tried within India. Any person liable, by any Indian law, to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India.

Section 4 of the IPC applies the nationality doctrine and provides for extension of codes to even extra territorial offences by any citizen of India, within or outside India and even for any ship, aircraft or person registered in India, wherever it might be. Thereby extending the scope of application of jurisdiction of the Indian Courts to even crimes which are committed outside India.

Code of Criminal Procedure, 1973 (CrPC)

The

Cr.PC has various provisions with regard to jurisdiction and Section 188 provides that even if a citizen of India outside the country commits the offence, the same is subject to the jurisdiction of courts in India. In India, jurisdiction in cyberspace is similar to jurisdiction as that relating to traditional crimes and the concept of subjective territoriality will prevail. Chapter XIII of the Code relates to jurisdiction of courts with regard to criminal matters. The primary theory of territoriality is embodied in Section 177 of the Code which provides that Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. Section 178 of the Code provides that even if a part of the offence is committed in India, it can be the place of inquiry.

The Principle of Territoriality has two concepts; 1. Subjective Territoriality concept and 2. Objective Territoriality Concept. While the former refers to the situation when an act has been initiated in a territory but consummated abroad, the latter refers to the situation when an act has been initiated abroad but consummated within a territory. Though the subjective territoriality provides jurisdiction beyond boundaries to a certain extent, the objective territoriality assumes greater significance when offenders involved in cross-border crimes are required to be put on trial in India.

Another significant view is that where an act is done abroad and the criminal effect is produced in India, the crime is taken to be
committed in India. This is based on effects principle .With ever-expanding boundary of cyberspace giving a much wider and global scope of committing crimes (the consequences of which can be almost anywhere in the world), providing for a global jurisdiction to tackle with the crime can well be justified by acceptance of this principle.

Section 179 of Code embodies the effects doctrine, which reads as under:

Offence triable, where act is done or consequence ensues: When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a court within whose local jurisdiction such thing has been done or such consequence has ensued.

The Supreme Court in State of Madhya Pradesh v. Suresh Kaushal, while discussing the importance of this Section inferred that Section 179 of Code provides that where there are two courts having jurisdiction, the trial is permitted to take place in any one of those two courts. One is the court within whose local jurisdiction the act has been done and the other is the court within whose local jurisdiction the consequence has ensued. The application of this principle in cyberspace has to be espoused owing to the peculiarity of the worldwide web, which undoubtedly permits initiation of the crime from any part of the world with its consequences in any other part of the world without any territorial boundaries. In a leading case of cyber crime, SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, Indias first case of cyber defamation, High Court of Delhi assumed jurisdiction over a matter where a corporate reputation was being defamed through e-mails, and passed an important ex-parte injunction.

The concept of consequence and cause of action extends jurisdiction but a conflicting situation arises where there is no defined regulation at one of the places.
For example, the Act does not provide any provision to catch the internet pornography on foreign websites but only for sites in India

In the famous Sony.Sambandh.com case, a complaint was filed by Sony India Private Ltd, which runs a website called www.sony-sambandh.com, targeting Non-Resident Indians. The website enables them to send Sony products to their friends and relatives in India after they pay for it online. In May 2002, someone logged onto the website under the identity of Barbara Campa and ordered certain products, gave her credit card number for payment and requested that the products be delivered to Arif Azim in Noida. After following the relevant procedures of due diligence and checking, the company delivered the items to Arif Azim. At the time of delivery, the company took digital photographs showing the delivery being accepted by Arif Azim. After one and a half months the credit card agency informed the company that this was an unauthorized transaction as the real owner had denied having made the purchase. The court convicted Arif Azim under Section 418, 419 and 420 of the IPC, this being the first time that a cybercrime has been convicted. The effect of the crime was generated in some other country which was actually committed online in India.

The Supreme Court of India, in the case of SIL Import v. Exim Aides Silk Importers, has recognized the need of the judiciary to interpret a statute by making allowances for any relevant technological change that has occurred. Until there is specific legislation in regard to the jurisdiction of the Indian Courts with respect to Internet disputes, or unless India is a signatory to an International Treaty under which the jurisdiction of the national courts and the circumstances under which they can be exercised are spelt out, the Indian Courts will have to give a wide interpretation to the existing statutes, for exercising Internet disputes.

International Aspect of Jurisdiction

Principles
I.

Jurisdiction to Prescribe(Legislative jurisdiction)

II.
III.

Enforcement jurisdiction
Adjudicative jurisdiction

Issue

The border-breaching nature of cyberspace, the substantial difference in the substantive laws of different states and the absence of any enforcement mechanism in the virtual world give rise to a multiplicity of judicial forums, since the cause of action and the parties are spread across physical borders. This enables a plaintiff to choose his forum, and the defendant, in his turn, to question the jurisdiction of the chosen court. Each legal system has responded to this question differently, based upon its own ideas of justice, expediency, convenience and experience, and guided by the prevalent constitutional and political order

Indian Position

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.

In India, the law of personal jurisdiction is governed by the Code of Civil Procedure 1908 (the Code)Sections 16 to 20 It incorporates specic provisions for meeting the requirements of serving the procedure beyond territorial limits.

Personal jurisdiction in cyberspace

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 and in part cause of action may furnish sufficient basis to exercise jurisdiction. Thus the Code provides for the tests of both objectivity and proximity to base its jurisdiction.

While the legal system favors 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).

IT Act Provisions

In India, The Information Technology (IT) Act 2000 has been passed to deal with cyber crimes and there are specific forums in the Act which have the sole jurisdiction to deal with the cyber crimes mentioned in the Act. by

Adjudicating Officers Appointed Controller Cyber Regulations Appellate Tribunal Appeal to High Court