CYBER LAWS

PROJECT REPORT ON

JURISDICTION IN CYBER LAW

COMPILED BY: TARUN INDER KAUR

273/14
B.A. LL.B. (HONS) A
SUPERVISED BY: MRS. AMITA VERMA

UNIVERSITY INSTITUTE OF LEGAL STUDIES

PUNJAB UNIVERSITY
 ACKNOWLEDGMENT

I express my sincere gratitude to Mrs. Amita Verma for her inspiration, expert guidance,
moral boosting, continuous encouragement and appreciation which are the vital factors in
successful completion of my project work. I humbly acknowledge deep gratitude towards my
teacher.

Thanking You.

Tarun Inder Kaur

 TABLE OF CONTENTS

 INTRODUCTION
 JURISDICTIONAL ISSUES IN CYBERSPACE AND ITS IMPLICATIONS ON
VARIOUS ESTABLISHED TRADITIONAL PRINCIPLES OF
INTERNATIONAL LAW
 CONCEPT OF JURISDICTION UNDER INTERNATIONAL LAW AND ITS
APPLICATION TO THE CYBER SPACE
 PROBLEM OF MULTIPLE JURISDICTION
 INDIAN POSITION OF THE JURISDICTION IN CYBERSPACE
 CONCLUSION
 BIBLIOGRAPHY
 INTRODUCTION

This project deals with jurisdiction and applicable law with respect to computer crimes and
offenders. The issue of jurisdiction of courts in crimes is perplexing in the cyberspace world
and computer crimes era. It is easier to sit in New Zealand and hack a computer in
Chandigarh and steal digital information than it would be for a thief to physically steal
something from the neighbourhood. The digital world makes national and international
borders a relic. Courts exercising jurisdiction on the basis of such national and international
borders are left aghast by the speed and ease with which a cyber-criminal moves from one
jurisdiction to another with the use of a mouse. The issue arising out of such activities, at the
foremost, contains that of the jurisdiction of a court. Which court shall have the jurisdiction to
entertain the matter? And then, which law shall be applicable in such cases?

The jurisdiction is the most crucial question posed in any court of law. If the court does not
have jurisdiction, the matter would not be proceeded in the court. The court (Domestic or
International) without jurisdiction does not have any authority to entertain the matter, to
decide rights and duties or impose penalty or punishment. The cyber space has raised the
basic problems of jurisdiction in international laws and domestic laws because of its de
territorial nature. Internet allows parties to execute transactions without disclosing their
identity; and the parties may not even know each other’s location. The party may sit at any
corner of the world and violate the rights of the other party or person. The paradigm of the
jurisdiction in the International law and national law is required to be shifted because of the
peculiar nature, increasing use and need of the cyber space.

The developing law of jurisdiction must address whether a particular event in Cyberspace is
controlled by the laws of the state or country where the Website is located or by the laws of
the state or country where the Internet service provider is located, or perhaps all of these
laws.
 JURISDICTIONAL ISSUES IN CYBERSPACE AND ITS
IMPLICATIONS ON VARIOUS ESTABLISHED
TRADITIONAL PRINCIPLES OF INTERNATIONAL LAW

The information age has significant effect on the doctrine of territorial sovereignty,
international law and relations between and amongst the states on the one hand and non-state
entities and states on the other hand. The foundation of the doctrine of sovereignty, non -
interference, sovereign equality are affected and the horizon of the national and international
law is continuously widening because of de-territorial nature of the cyberspace. Due to
development of cyberspace and technology the concept of territorial sovereignty is being
liberalized, and the states and nationals are exposed to whole of the world. The information
technology has not only increased inter-dependence between Domestic Laws and
International Law but also has changed the power structure, including power to decide matter
affecting nationals of a sovereign state.

1. Legalization of the International and Domestic Laws vis- a- vis Technological

Advancement
Some critics claimed that there is a systematic tension between norm-oriented and interest-
based politics. They pointed out that under the veil of ‘legalization’, long standing principles
of International Law have been abandoned to make the structures on international conflicts
and co-operation more responsive to the interest of the powerful, ‘multilateral’ agreements
that are accused of advancing a hegemonic order.
Many other jurists of the International Law believe that internet undermines the feasibility –
and legitimacy –of laws based on geographical boundaries. The technologically powerful
states are able to establish corporations to control sovereign power of other states. According
to the representational concept, an individual is the most important unit of analysis in the
international system; and a truly sovereign state represents the general will of its populace.
Which means that the legitimacy of applying a state’s laws to conduct that occurs in another
State’s territory depends on whether such laws would prevent (that) state from functioning as
a sovereign.
The present laws of governing internet are territorial in nature. There is no effective
mechanism at international level to protect rights of individuals1. In this situation, the
nationals of other state are left with no choice but to accept the policy of ICANN to avail (at
least partial) worldwide protection to their domain names.

2. Impact of cyberspace on the Doctrine of Sovereignty

The doctrine of territorial sovereignty assumes the control of the state over the territory
including the living and non-living things. Thus legal competency of the states and the rules
for their protection depends upon and assumes the existence of a stable, physically delimited
homeland. Law making sovereignty itself – internationally recognized “statehood”-is defined,
at bottom, by control over a physical territory, over which it has control. This means that the
sovereign has the suprema potestas in local matters and as such has superior authority over
its powers of command. In traditional sense it also means that when a person is in a territory,
the other territorial laws would not be applied. The International Law also allows the state to
react, in case of interference by other state or non-state entities. The relation of the cause and
effect underlines the parallel principle that a state may be held responsible under International
Law for damage which it causes in the territory of another state. In these cases, under the
International Law the state gets extra-territorial jurisdiction. General principle has now
emerged that a state may exercise jurisdiction if there is a sufficiently close connection
between the subject matter and the state to override the interests of a competing state. The
principle of territorial sovereignty is not applied in strict sense in the era of cyberspace.
However, there are many cases in which multiple sovereign states are claiming jurisdiction at
a time. As discussed earlier, the logic of claiming jurisdiction is that their nationals have
access to material on internet.

The jurisdiction and the prerogative of enactment of the laws and enforcement of the laws in
relation to territory are important facets of the doctrine of sovereignty. The technological
advancements have adverse impact on traditional sovereign privilege to take decisions in
relation to citizens and non-citizens vis- a-vis cyberspace.

1
Trips and WIPO imposes obligation on the state and no remedy is provided for the infringement of copyright
infringement by individuals from other country.
 CONCEPT OF JURISDICTION UNDER INTERNATIONAL
LAW AND ITS APPLICATION TO THE CYBER SPACE

The traditional principles and doctrines of jurisdiction are developed and applied to resolve
the problems of the physical world that exist in the pre-cyberspace era. Therefore, there is a
need to discuss the concept of jurisdiction and its application to cyberspace.

1. Concept of jurisdiction under International law

Jurisdiction concerns the power of the state under international law to regulate or otherwise
impact upon people, property and circumstances and reflects the basic principles of state
sovereignty, equality of states and non-interference in domestic affairs. It is an aspect of
sovereignty and refers to judicial, legislative, and administrative competency. Normally the
International law sets little or no limit on the jurisdiction which a particular State may
arrogate to itself. Even though the international law sets minimum limitation, the sovereign
state shall not control things, events, and persons, etc., which are either totally out of its
concern or are completely controlled by other sovereign States.

2. Classification of jurisdiction under International law:-

The jurisdiction in the International law is divided broadly as:
a) Civil jurisdiction
b) Criminal jurisdiction
The civil jurisdiction is applied in civil matters and criminal jurisdiction is applied to the
criminal matters. In order to apply the above jurisdictions, traditional International law has
adopted the following basic principles or doctrines:
i) The territorial principle:
a) Subjective territoriality
b) Objective territoriality/ The ‘effects’ doctrine
ii) The nationality principle:
a) Passive nationality principle
b) Active nationality principle
iii) Protective or security jurisdiction
iv) Universality jurisdiction
i) The territorial principle
The territorial principle protects the authority of the state over its territory with respect to
property, persons and acts occurring in the territory. According to the third, and as a corollary
to the first of the Lotus principles, it is a fundamental rule of international law that the
jurisdiction of a State within its own territory is complete and absolute. It is a basic attribute
of sovereignty and flows from the very existence of the state as an international legal person2.
The principle has been well explained by Lord Mcmillan. According to him, “It is an
essential attribute of the sovereignty of this realm, as of all sovereign independent states, that
it should possess jurisdiction over all persons and things within its territorial limits in all
causes, civil and criminal, arising within these limits.”
The territorial principle is an attribute of control over physical space; but, in reality, persons,
things and actions may move across physical boundaries. It functions as a constraint on the
strict application of territorial principles that attempts to reconcile “the principle of absolute
territorial sovereignty with the fact that intercourse between nations often demands the
recognition of one sovereign's lawmaking acts in the forum of another”.
The territorial principle is further divided in the following categories:

a) Subjective territoriality3
The subjective international principle allows the exercise of jurisdiction in the state where a
crime is commenced. Subject to certain immunities under the International Law, this
principle is applied when the offence is committed within the sovereign territory of a state
irrespective of the nationality of the doer. The crime may be committed against the territorial
state or against any other state. Whenever it is punishable according to the laws of the
territorial state, the state has jurisdiction to punish the person. The principle of the subjective
jurisdiction flows from the principle of territorial sovereignty.

b) Objective territoriality/ The ‘effects’ doctrine

Objective territoriality is invoked where the action takes place outside the territory of the
forum state, but the primary effect of that activity is within the forum state. The effects
principle is based upon the territorial sovereignty of the state. The premise is that a state has
jurisdiction over extraterritorial conduct when that conduct has an effect within its territory.

2
Art 2(7) of United Nations Charter, 1945.
3
The subjective and objective principles of jurisdiction were introduced in Article 9 of the Convention
The effect doctrine was developed by USA court while dealing with antitrust law. The
significance of decision was that it did not depend upon the commission of the physical acts
within US territory, the intentional production of economic ‘effects’ within the United State
was sufficient. The doctrine is further followed in the case of Rio Tinto Zinc Corp v.
Westinghouse Electric Corp.,4 wherein there was no intra-territorial act. The only basis for
jurisdiction was ‘effect’ or economic repercussions of cartel on US.
The objective territorial principle requires intra-territorial action, whereas according to the
effects doctrine, a jurisdictional link between the act and the state that claims jurisdiction is
constituted by the effects. In short, the ‘effects’ doctrine does not require any intra-territorial
conduct, whereas the objective territorial jurisdiction does require at least some intra-
territorial conduct to assume the jurisdiction. There are mixed reactions of the European
Court of Justice towards ‘effect doctrine’.
The territorial principle cannot completely resolve the problem of the jurisdiction in
cyberspace. As discussed earlier, the cyberspace is de-territorial or borderless space, the
offence in cyberspace can be committed by any person from anywhere and at any time. The
most difficult challenge in resolving the problem of jurisdiction by applying traditional
principles of jurisdiction is that the offence in cyberspace can be easily committed against
multiple countries. The territorial principle of the jurisdiction does not provide solution to the
multiple countries either by establishing common tribunal or otherwise.
There are a number of problems which may arise while applying the effect doctrine to cyber -
crimes. As discussed earlier, the crime or act in cyberspace may have multiple effects (direct
and indirect) on multiple territories; but an actor may not have any intention or Mens Rea to
cause the effect on some of the territories. Another problem is that if the accused is caught by
one sovereign territory, he/she will not be available to others. Further, the person may be
prosecuted and punished in multiple jurisdictions simultaneously; it may cause great
inconvenience and lead to injustice. It will also lead to violation of the principle of ‘double
criminality’. The ‘effect doctrine’ can be used as a tool to resolve the problem of the
jurisdiction in cyberspace only in instances of offences against one country only. In instances
of impact upon multiple countries, it cannot be an effective solution to the problem of
jurisdiction.

4
Rio Tinto Zinc Corp vs. Westinghouse Electric Corp. 1978, 1 All ER 434 (HL).
ii) The Nationality Principle
The principle of Nationality plays a vital role in International law. According to the
nationality principle, the State can exercise a direct control over its nationals. The State gets
the right to protect and the right to punish its own nationals. The state can legislate to regulate
activities of its nationals abroad, whether living there or merely visiting. The nationals of a
country are considered to be under the observation of the state, but the state legislations
cannot be enforced in another state. The nationality principle is divided into Passive
Nationality Principle and Active Nationality Principle.

a) Passive Nationality Principle

This principle authorizes states to assert jurisdiction over offences committed against their
nationals abroad. It recognizes that each state has a legitimate interest in protecting the safety
of its citizens, when they travel outside national boundaries5. In other words, the passive
personality principle recognizes that a sovereign can adopt laws that apply to the conduct of
foreign nationals who commit crimes against the sovereign’s nationals while the sovereign’s
nationals are outside the sovereign’s territory. Though the court can assume jurisdiction
under passive nationality principle, the problem with the custody of offender, problem of
investigation and extradition will remain unanswered.

b) Active nationality principle

A sovereign state can claim jurisdiction on the basis of nationality of the defendant.
Individuals are subject to the jurisdiction of their state of nationality because they owe
allegiance to that state. The right of a state to regulate the conduct of its nationals everywhere
and thus assert nationality as a basis for jurisdiction is widely accepted. International law
requires that a state must have a genuine link with the person to assert jurisdiction based on
nationality. On the whole, civil law countries (many of which do not extradite their nationals)
tend to exercise jurisdiction on the basis of active nationality more frequently than common
law countries. Active nationality principle is recognized in many Conventions, which define
international crimes and national jurisdiction. In accordance with the nationality principle, a
country has jurisdiction to punish its own nationals who commit offences outside the national
territory. These principles cannot be effective solutions when the offence is committed
against the nationals of multiple countries.

5
United State vs. Yunis (1998) 681 F Supp 896.
iii) Protective or security jurisdiction
The protective principle allows a state to prosecute foreigners who have committed acts
outside the State’s territory that are directed against the sovereignty or security of the state or
endanger its functions. Jurisdiction under the protective or security principle can be resorted
to in relation to acts aimed at States themselves committed by anyone, and anywhere. The
protective principle applies to treason, espionage and other crimes directly affecting the
state's security, but not to ‘ordinary’ crimes, such as murder and assault. A distinction has to
be made between the ‘effects doctrine’ and ‘protective or security jurisdiction’. While
jurisdiction based on the ‘effect doctrine’ requires that the effect or result of the offence
occurs in the territory of the state claiming jurisdiction, the protective principle applies if the
conduct abroad threatens the security, integrity or the proper functioning of the prosecuting
state’s government, though there is no effect in the state’s territory.
Protective or security jurisdiction may be useful in exceptional cases. As discussed above, the
protective or security jurisdiction cannot be claimed in every ordinary offence. It may be
claimed when conduct abroad threatens the security, integrity or proper functioning. In
instances of attack on the critical infrastructure or websites of the sovereign state (it may
include attack upon the websites of the military or armed forces), the protective principles
can be applied.

iv) Universality jurisdiction

The Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights
Offences presented to the International Law Association describes the concept of universal
jurisdiction as follows: “Under the principle of universal jurisdiction, a state is entitled, or
even required to bring proceedings in respect of certain serious crimes, irrespective of the
location of the crime, and irrespective of the nationality of the perpetrator or the victim.6” It
means unlike other principles of jurisdiction, the exercise of universal jurisdiction does not
require any nexus to the locus delicti, nationality of the offender, nationality of victims, or the
interest of the state. Jurisdiction on the basis of the universality principle can be invoked in
relation to activities directed against the international community as a whole. According to
the First report of International Law Association the State is not only entitled to but also
requires to bring action against offences forming part of universal jurisdiction.

6
International Law Association, ‘Final Report on the exercise of universal jurisdiction in respect of gross human
rights offences, Committee on International Human Rights Law and Practice, London Conference, 2000.
 PROBLEM OF MULTIPLE JURISDICTIONS

Since cyberspace is a borderless space and the established rules are established by keeping in
mind the principles of territorial sovereignty, the established principles need to be either
modified, or there is a need to establish new principles of jurisdiction for cyberspace. At
present, a number of national courts are using and interpreting established principles, while
keeping in mind the interest of their own territory or nationals. The multiple nations are
claiming the jurisdiction on the same subject matter or against the same culprit. All nations
are not able to take actual action because of lack of physical presence or property of the
accused in a sovereign.
 INDIAN POSITION OF THE JURISDICTION IN
CYBERSPACE

Section 2 to 4(2) of the IPC deals with territorial and extra territorial offences. The IPC is
made applicable to the any offence committed by the Indian citizen in the cross the globe. In
the instances of a person (non citizen) doing offence outside the Indian territory, the offence
does not fit in the scope and ambit of the Indian Penal Code, 1860. Therefore offence
committed by the person from other sovereign nation in cyberspace is not punishable under
Indian Penal Code, 1860.
Another important legislation, IT Act, 2000 is enacted to resolve the problem of jurisdiction
in India. The Information Technology Act, 2000 is applicable to the citizen and non citizens
committing crimes outside the India territory (Section 1(2) and 75 of the IT Act, 2000). It is
submitted that even section 75 of the Information Technology Act, 2000 and section 3 and 4
of The Indian Penal Code provides extraterritorial jurisdiction. The provisions of both the
Acts have only partially resolved the problem of the jurisdiction. According to sub-section 1
of the section 75 of the Information Technology Act, 2000 the jurisdiction with respect to the
offence or contravention committed outside India by any person irrespective of his nationality
the IT Act, 2000 would be applicable. The sub-section 1 of the section 75 is subject to
qualification provided under sub-section 2 of the section 75. Sub-section 2 of the section 75
of the Information Technology Act, 2000 applies 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 the territory of India.
In addition to above sections, section 13 of Information Technology Act, 2000 is also
relevant to analyze the problem of jurisdiction in cyber space. Section 13 deals with time and
place of dispatch and receipt of electronic record. Sub-Section 3 of the section 13 is worded
as follows: “Save as otherwise agreed between the originator and the addressee, an electronic
record is deemed to be dispatched at the place where the originator has his place of business,
and is deemed to be received at the place where the addressee has his place of business.”
Section 13 of the IT Act, 2000 assumed the place of dispatch and place of receiver of
electronic record at the place of business, irrespective of actual place of dispatch or receipts
of the electronic record. This assumption is important because it provides jurisdiction to the
Indian courts if the place of business of originator or addressee is in India. According section
13 the court will have jurisdiction though the electronic record in fact may or may not be
received in or dispatched from the computer, computer systems or computer mechanism
situated in India. Normally, the court gets jurisdiction at the place of business, place of
dispatching of electronic record and place of receiving the electronic record. Section 13 of the
IT, Act, 2000 will have overriding effect on CPC and Cr.P.C.144 As discussed above,
according to statutory assumptions created under section 13 of IT Act, 2000 though the
person is residing and dispatching an electronic message from the territory of India and if his
place of business is outside the territory of India, the Indian court cannot exercise the
jurisdiction. Similarly, according to said assumption created under section 13 the court can
assumed jurisdiction though electronic message is dispatched or received outside the territory
of India if the person receiving or dispatching an electronic message has place of business in
India.
It needs to be noted that because of section 13 of the IT Act, 2000 the Indian court would not
be able to take cognizance of the matter though act of dispatching electronic message is
partially or fully conducted from the territory of India. Further, because of this statutory
assumption the court would be unable to take cognizance of the matter even if the electronic
message has an adverse impact on rights or interests of the citizen(s) of India. The
assumption created under section 13 of IT Act, 2000 does not have any advantage as such
because otherwise also according to general principles of jurisdiction and CPC and Cr. P.C
the court was empowered to take cognizance of the matter at the place of the business of the
person. Section 13 of the IT Act, is apparently inconsistence with territorial and passive
nationality principles of International law on jurisdiction.
Section 4 of the Indian Penal Code, 1860 has been amended by amendment Act, 2008.
According to new sub-section (3) of section 4 of Indian Penal Code, the code would apply to
“any person in any place without and beyond India committing offence targeting a computer
resource located in India”. According to explanation (b) the expression “computer resource”
shall have the same meaning assigned to it in clause (k) of sub-section (1) of section (2) of
the Information Technology Act, 2000 (21 of 2000). According to the new provision of the
Indian Penal Code, 1860 for applying the India Penal Code “targeted computer resource”
shall be located in India.
It is pertinent to note that the word ‘targeting’ is used in sub-section 3 of section 4 of IPC,
1860. The word ‘targeting’ is not further defined or clarified by the legislature. The literal or
dictionary meaning of ‘targeting’ is ‘aiming at’. The literal or dictionary meaning of words
used in criminal law is needed to stress out because the rule of strict interpretation is
applicable to the criminal law. The rule of strict interpretation implies the strict or literal
interpretation of the criminal law. It is submitted that, after applying the rule of strict
interpretation, there is a doubt whether IPC would be applied when: a) aim or target is not a
computer resources but a person. It means the intention is not to cause wrongful loss to the
computer resources including computer or data per se but to the person via or with help of
computer resources (for example by publishing the defamatory comments). In this example
‘means’ and ‘target’ are different. ‘means’ is computer resource and ‘target’ is a person.
Therefore, in the above example offence is committed with the help of computer resource and
not by targeting it. b) the offences are committed via network located in India; c) wrongful
loss is caused to the person by making data accessible to the entire world including India but
date is copied from the computer located outside the territory of India d) In the examples of
passive websites registered and created outside India (for example photographical websites)
but accessible in India. Similarly, a website with unauthorized copyrighted material may have
access in India without targeting computer resources located in India. In these examples the
target is not computer resources located in India per se. The intention is to make it accessible
to the entire world. Incidentally, it would be accessible in India also. The above explanation
shows that the jurisdiction clause is resource (object) centric rather than victim centric.
Apart from above both these legislations would not be applicable to the recent development
that is services of cloud computing. The services of cloud computing may be provided by the
person, company or corporation. In cloud computing the computer resources may not be
physically located in the territory in India. The relation between the cloud computing
company and the person staying or residing in India would be governed by the cloud
computing agreement. The cloud computing agreement is a contractual liability. It is a civil
liability subject to term and conditions of the agreement. Further the jurisdiction of the court
depends upon the ‘choice of the law clause’ agreed by both the parties to contract. In
instances of lack of choice of law agreement, general rules of jurisdiction would be applied.
It is further submitted that in the instances of the agreement between the parties, the body
corporate may be responsible under Section 43A of the Information Technology Act, 2000.
According to Section 43A of the Information Technology Act, 2000: “where a body
corporate, possessing, dealing or handling any sensitive personal data or information in a
computer resource which it owns, controls or operates, in negligent in implementing and
maintaining reasonable security practices and procedures and thereby causes wrongful loss or
wrongful gain to any person, such body corporate shall be liable to pay damages by way of
compensation to the person so affected.” It is submitted that according to Section 75 of IT,
Act, 2000 or Section 4 of the IPC, the above mentioned body corporate should be located in
the territory of India or shall use the computer resources located in India. In other words,
Section 43A would not work in isolation. It is not an exception to the Section 75 of the
Information Technology Act, 2000. It shall be interpreted along with Section 75 of the IT
Act, 2000. It is submitted that reading Section 43A of IT, Act, 2000 in isolation would be
inconsistent with basic rule of interpretation of statutes (i.e. statute shall be read as a whole).
It is pertinent to note that Section 43A does not provide any liability of the actual offender
(i.e. a third person committing offence from foreign jurisdiction with the help of computer
etc. situated outside India). In an example of cloud computing or liability under section 43A
of the Information Technology Act, 2000, if the body corporate was not negligent in
implementing and maintaining reasonable security practices and procedures, then no liability
can be imposed against the said body corporate.
Furthermore, section 75 of the IT Act, 2000 or sections 4 of Indian Penal Code, 1860 do not
provide jurisdiction in scenario when an offence is committed by foreigner from other
country against citizen of India by using computer resource located outside India. For
example, in instances of Indian nationals carrying the computer resources with them outside
the Indian territory, no express jurisdiction is provided to Indian courts under IPC, 1860 or
Information Technology Act, 2000. In examples of social websites also the computer
resources located in the territory of India may not be used.
Apart from above, section 1 (2) and section 62 of Indian Copyright Act, 1957 are relevant to
analyze the problem of jurisdiction in cyberspace. According to section 1 (2) of the Indian
Copyright Act, 1957, the Indian Copyright Act extends to the whole of India. According to
section 62 (1) of the Indian Copyright Act, 1957, “Every suit or other civil proceeding arising
under this chapter in respect of the infringement of copyright in any work or the infringement
of any other right conferred by this Act shall be instituted in the district court having
jurisdiction”. Further, according to section 62(2) of the Indian Copyright Act, 1957 for the
purpose of sub-section 1 district court include a district court within the local limits of whose
jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting
the suit or other proceeding actually and voluntarily resides or carries on business or
personally works for gain. The explanation on above sections shows that the Indian
Copyright Act, 1957 is made applicable to the Indian territories only. It does not provide any
express provision for extra-territorial application of the Indian Copyright Act, 1957.
It means Indian laws on jurisdiction are location (territory) centric rather than victim or
offender centric. In other words, the IT Act and IPC are the glaring examples of non-
application of the passive nationality principle recognized by International Law. It is
respectfully submitted that the Indian Parliament lacks visualization of nature and probable
offences committed with help of cyberspace. The Indian laws on jurisdiction need to shift
offence centric paradigm to offender and victim centric.
The amendment to IPC is partially providing relief or remedy from possible misuse of
computer resources. It may be noted that the Amendment Act fails to provide relief or
remedies against the offences committed by the person, when the computer resources are not
located in the territory of India, though the rights of Indian citizens are infringed.
Though the IPC and IT, Act, 2000 provides partial jurisdiction to courts implementation of
the Acts depends upon the extradition treaty of India with the territorial states or friendly
diplomatic relations with the respective countries. Apart from above sections 178, 179, 182
and 188 of the Criminal Procedure Code, 1973 deals with the issue of jurisdiction. Section
178 of Criminal Procedure Code deals with place of inquiry or trial. The section 178 provides
jurisdiction to the court when the act, fully or in part, arises in the said territory. Section 179
of Criminal Procedure Code provides jurisdiction to the court on the basis of the act done or
its impact. According to section 179 of Cr.P.C, 1973, “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 Criminal Procedure Code has adopted territorial
principles and impact theory of jurisdiction. Section 182 of Cr. P. Code deals with offences
committed by letters or telecommunication messages. It provides jurisdiction where letters or
messages were sent or received. Section 188 deals with offence committed outside India. It
provides the same jurisdiction as provided in the original Indian Penal Code.
SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra7, is a first case from India about cyber
defamation. In this case High Court of Delhi assumed jurisdiction over a matter of
defamation of reputation of corporate through e-mails. The court passed an ex-parte
injunction. The Supreme Court of India, in SIL Import v. Exim Aides Silk Importers8 pointed
out that judiciary needs to interpret a statute in the light of 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 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.

7
Suit no. 1279/2001.
8
(1999) 4 SCC 567.
 CONCLUSION
The virtual world is a set back to the traditional principles; but sovereignty and other
principles discussed above would not completely disappear. The jurisdictional and choice-of-
law dilemmas posed by cyberspace activity cannot be adequately resolved by applying the
“settled principles” and “traditional legal tools” developed for analogous problems in real
space.
Traditional International Law does not compel a person to observe the laws of other nations
unless he/she enters into that territory or that territory is directly affected. In the era of
internet, it is difficult to observe, how many countries are directly or indirectly affected. In
this chaotic situation there is a need to establish a supra-national organization to deal with
problems posed by cyberspace.
As discussed above, the established principles of law and international law are either not
responding to or are not able to resolve the problems posed by cyberspace. The cyberspace is
fundamentally different from physical space. It is fundamentally different in its nature,
control, extent and impact. Internet is new and separate jurisdiction in which the rules and
regulations of physical world do not apply as it is.
According to some of the authors it is a seamless global-economic zone, borderless
and unregulatable. Further, the cyberspace radically undermines the relationship between
legally significant (online) phenomena and physical location. The rise of the global computer
network has destroyed the link between geographical location and application of laws.
To answer the above questions globe needs to move from territorial philosophy to new legal
philosophy known as global transnationalism. The international law will have to act in such a
way so as to resolve the conflict considering the rights and interests of every affected party.
For that purpose the cyberspace shall be declared as res extra commercium (i.e. territory not
subject to national appropriation, such as high seas). To manage this territory, there shall be a
supra-national organization under the control of UNO.
At present the use of principle of co-operation, comity, justice by giving due regard to the
international duties can be a solution to the problem of jurisdiction posed by the cyberspace.
 BIBLIOGRAPHY

BOOKS

 Vakul Sharma, Information Technology, law and practice, University Law Publishers,
2nd Ed, 2007.
 Dr. Jyoti Rattan, Cyber Laws and Information Technoogyg, Bharat Law House Pvt.
Ltd, New Delhi, 2nd Ed, 2011.

WEBSITES

 Indiagovernance.blogspot.com