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Ascertaining Cyber Jurisdiction in Cyber Space: Jurisprudential Understanding and A Comparative Analysis.

Abstract The term jurisdiction refers to the courts authority to hear a particular dispute. The determinants of jurisdiction are generally territory and subject matter. However these traditional jurisdictional factors do not fit into the cyberspace scenario because the limits of cyberspace are not determined by any physical boundary. The developing law of jurisdiction must address whether a particular event in cyber space is controlled by the laws of the state or country where the website is located, by the laws of the state or country where the internet service provider is located, by the laws of the state or country where the user is located, or perhaps by all of these laws. In this paper an attempt has been made to challenge and analyse the current paradigm being used for determination of cyberspace jurisdiction in India. The rapid growth of ecommerce and the vulnerability of the netizens make the task all the more challenging. The absence of a single determinant for ascertaining jurisdiction over cyber space and the practices employed by the various developed countries poses an uphill task on the face of our judiciary. However competitive legislation and suitable administration ensuring content filtration and strict surveillance is prototypical for building confidence and instilling faith in the system. The legislature can provide its assistance to the benign objective of bringing an end to the jurisdictional issues by enacting appropriate statutes and the judiciary must pave its way by suitable progressive adjudications in the respected field. We have tried to suggest means to bring about public acceptability and faith in the system, faith and participation share a symbiotic relationship so as long as we are not successful in actively involving their participation, the mechanism still remains a myth in desperation. The proposals suggested in the article have been formulated with the thought that there implementation shall usher a new era in cyberspace regulation in India. Keywords: Jurisdiction, Cyberspace, Internet I. INTRODUCTION The evolution of relationship between the computer technology and law always results in an uneasy liaison which is now apparent with the emergence of a new space, the cyberspace. Cyberspace can be defined as a virtual location situated in no particular geographical area but available to anyone, anywhere in the world, with access to the internet. Cyberspace is thus inherently a Global Common Place. The advancement of Internet has created ambiguity for sovereign territory because network boundaries intersect and transcend national borders. The evolution of the Internets technological infrastructure is intertwined with sovereign jurisdiction because the relationship between technology and law is dynamic and this technologically-created ambiguity challenges sovereign jurisdiction. Jurisdiction means the authority which a court has to decide matters that are litigated before it or to take cognizance if matters are presented in a formal way for its decisions, it could be said that it is the

power/authority of the court to decide matters that are brought before him. In this context, jurisdiction over activities on the Internet has become a battleground for the struggle to establish Rule of Law in the Information Society.

At first, however, it is important to determine whether the Internet allows people to do new things or whether it largely allows people to do existing things in new ways, albeit in greater volumes. This is a necessary distinction to be drawn, as the answer directly impacts upon the manner in which the Internet should be regulated. The Internet provides its users with a new way of communicating, interacting and conducting business. The internet undoubtedly marks a revolutionary leap above mail or telephonic correspondence. Nevertheless, treating the Internet as a separate space that should be regulated distinctly from real space would require a significant departure from traditional legal principles.

As is the trend with every other technology, Internet has also brought certain problems with itself such as computer crimes, breach of contracts done on line, issues of pornography due to different moral standards in different countries etc. Due to the decentralized nature of Internet parties residing in different jurisdictions are brought in contact with each other and thus the issue as to which court will acquire the authority to try the case in case of a contentious topic always remains a problematic question. In this paper an attempt has been made to look into the concept of cyberspace jurisdiction, the basic principles on which this jurisdiction is determined, a comparative analysis of the model followed in various countries, the Indian experience and what are the problematic issues and the appropriate remedies. II. CYBER JURISDICTION: A JURISPRUDENTIAL UNDERSTANDING As the World Wide Web has increasingly become a convenient tool of business and communication, it has led to a virtual world which cannot be defined or delimited within specific territorial limits, thereby making the issue of jurisdiction all the more complicated. The Internet explosion has generated many jurisdictional disputes, putting the onus on Courts to determine how to apply historic concepts regarding personal jurisdiction to the boundary-less world of the Internet. In Cyberspace, ascertaining jurisdiction is the overriding conceptual problem for domestic as well as foreign issues. Unless it is conceived of as an international space, cyberspace takes all of the traditional principles of conflicts-of-law and reduces them to absurdity. Unlike traditional jurisdictional problems that might involve two, three, or more conflicting jurisdictions, the set of laws which could apply to a simple webpage may involve all of them. The developing law of jurisdiction must address whether a particular event in cyber space is controlled by the laws of the state or country where the website is located, by the laws of the state or country where the internet service providers (ISPs) are based, by the laws of the state or country where the user is located, or perhaps by all of these laws. Cyberspace radically undermines the relationship between legally significant (online) phenomena and physical location. In a nutshell the rise of the global computer network is destroying the link between geographical location and: (1) the power of local governments to assert control over online behavior;

(2) the effects of online behavior on individuals or things; (3) the legitimacy of the efforts of a local sovereign to enforce rules applicable to global phenomena; and (4) the ability of physical location to give notice of which sets of rules to apply. The net thus radically subverts a system of rule-making based on borders between physical spaces, at least with respect to the claim that cyberspace should naturally be governed by territorially defined rules.

III. JURISDICTIONAL ANALYSIS OF CYBER-SPACE Ordinarily, the first issue a court will consider in any kind of dispute is whether or not it has jurisdiction to hear the dispute. A court must have both subject-matter jurisdiction (i.e.; jurisdiction over the parties involved in the dispute) and territorial jurisdiction. In practice, the subject-matter jurisdiction criterion simply denotes that a plaintiff cannot, for example turn to the family court in relation to an Intellectual Property Dispute. The criterion of territorial jurisdiction on the other hand can give rise to more complex issues in the cyber space as the limits of cyberspace are not bound by any boundary. What is the basis for the exercise of legal jurisdiction in an increasingly electronically interconnected world? The question of jurisdiction implicates issues of convenience to the parties in deciding a case in a given location, whereas choice-of-law addresses the actual norms to be applied and so both involve a symbolic assertion of a communitys dominion over a dispute. The objective of legal jurisdiction both reflects and reinforces social conceptions of space, distance and identity. Current rules for jurisdiction are territorially based and were developed in an era when physical geography was more consequential than it is today. The concept of jurisdiction is based on the territory and a persons allegiance to his respective state and some of the key principles have been examined hereunder

Territorial Principle of jurisdiction: According to this principle, state paid primary allegiance to the territorial principle of jurisdiction. According to this each state might exercise jurisdiction over property and person in, or acts or events occurring within its territory. Subjective Territorial Principle The states arrogated to themselves a jurisdiction to prosecute and punish crimes commenced within their territory, but completed or consummated in the territory of another state. Objective Territorial Theory: The setting in motion of the outside of a state of a force which produces as a direct consequence an injurious effect therein justifies the territorial sovereign in prosecuting the actor when he enters its domain.

Territorial justification over criminals: Territorial criminal justification is generally founded on the principle that crimes should be dealt with by the states whose social order is most closely affected and in general this will be the states on whose territory the crimes are committed. Personal Jurisdiction Personal jurisdiction depends upon some quality attaching to the person involved in a particular legal situation which justifies a state or states in exercising jurisdiction in regard to him. Zippo Mfg Co v Zippo Dot Com, Inc was a seminal case on this point which leads to the emergence of three general categories of Internet presence which further created three general lines of case law addressing jurisdiction issues of cyberspace. The first of those categories addresses Passive Websites that merely present information without accepting information from the viewer, taking orders or selling or offering services or products. They generally lack any jurisdiction. The second category consists of a blend of Website having both active and passive characteristics- those that allow for the exchange of some information between the site and the viewer. Here the court shall decide on the level of interactivity between both the mediums. The third category includes those websites where the provider actively communicates and conducts business over the Internet by allowing the user to enter into contracts or make purchases of products advertised on the site. Jurisdiction is generally deemed when the website is highly interactive.

The interpretations of Courts have varied from time to time over what constitutes a purely active website or a Passive one, however these decisions are very fact-dependent and courts have not hesitated to mould the sliding scale analysis or utilize different jurisdictional analyses. Personal jurisdiction may be exercised on the basis of one or other of the following principles: Passive Websites These apply the passive nationality principle where jurisdiction is assumed by the state of which the person suffering injury or a civil damage is a national.Courts generally find insufficient evidence to support personal jurisdiction based solely on plaintiffs accessing the passive website of a non resident defendant in the forum state, sans some additional showing that the nonresident defendant purposely attempted to conduct or solicit business in the forum state. In the case of Revell v Lidov , the United States District Court for the Northern District of Texas, Dallas Division adopted the sliding scale analysis, finding no jurisdiction where the individual had posted an alleged defamatory article on a passive web site. In another case of Cybersell, Inc. v. Cybersell, Inc, the Ninth Circuit found jurisdiction lacking where the defendants site provided the companys local phone number and electronic mail address, but no services could be provided, no contracts could be consummated and no products could be sold via the Internet
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However in some cases courts have given decisions in exception to the general rule. Significant among those was Inset Systems, Inc. v. Instruction Set, Inc., where the United States District Court for the District of Connecticut held that it had jurisdiction

over a defendant based on its continuous advertisement over the Internet, which included at least 10,000 potential access sites in Connecticut, and the use and advertisement of a toll-free number on its Web site. Active Websites The second type of Web site is one in which the provider actively conducts its business over the Internet, by displaying product or service information and allowing the user to enter into contract and purchase the products or services advertised, most often charged to a credit card number given by the user. These apply the Active Nationality principle jurisdiction is assumed by the state of which the person, against whom the proceedings are taken, is a national. Courts generally have no trouble finding personal jurisdiction over providers of such sites. These are the most common sites where online shopping, booking etc can be made. In Rainy Day Books, Inc. v. Rainy Day Books & Caf, L.L.C, the District Court for the District of Kansas found jurisdiction over a Maryland bookstore whose Internet site provided information about the store, upcoming events, permits the user to subscribe to a mailing list, obtain information regarding gift certificates or purchase books on-line by clicking a link to an on-line third-party ordering service (which would give the bookstore a credit for the sale).

Websites with both Passive and Active Characteristics. This is an interactive site where the provider allows for the exchange of certain information between it and users accessing the site. This type of site may provide various services on-line to the user. Courts often state that in order to determine the jurisdiction an assessment and evaluation of the level of interactivity and commercial nature of the exchange of information that occurs on the website must be made. In Superguide Corp. v. Kegan, the United States District Court for the Western District of North Carolina found jurisdiction over a nonresident defendant based on the defendants Website advertisement of products to forum state residents and the courts assumption that most the those residents had utilized the defendants services.

In another case where the Court gave its decision upholding the jurisdiction was Hasbro v. Clue Computing, Inc., where Massachusetts court found jurisdiction in a trademark infringement claim over a Colorado corporation which utilized a partially-interactive Web site that could be accessed by Massachusetts citizens. In Heroes, Inc. v. Heroes Foundation , the District of Columbia court found jurisdiction based on a nonresident defendants solicitation of donations through its home page.
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However in the case of Amazon Tours, Inc. v. Wet-A-Line Tours, L.L.C. , a magistrate for the District Court for the Northern District of Texas found that it lacked jurisdiction over a Georgia company whose Internet site provided information about tour packages, a message posting board, a form to request a brochure and links to the companys electronic mail address, because this did not constitute the kind of interactivity required to exercise jurisdiction over a nonresident defendant.

Thus traditional rules relating to jurisdiction and competence incorporate a notion of territoriality. However internet communications are not geographically dependent,

because there is no necessary connection between an internet address and a physical jurisdiction and hence it poses diverse challenges and conflicts. IV. ABSENCE OF TERRITORIAL BORDERS IN CYBERSPACE Cyberspace has no territorially based boundaries, because the cost and speed of message transmission on the Net is almost entirely independent of physical location. Messages can be transmitted from any physical location to any other location without degradation, decay, or substantial delay, and without any physical cues or barriers that might otherwise keep certain geographically remote places and people separate from one another. Location remains vitally important, but only of the virtual space consisting of the addresses of the machines between which messages and information are routed. The system is indifferent to the physical location of those machines, and there is no necessary connection between an Internet address and a physical jurisdiction. Although geographic boundaries may be irrelevant in defining a legal regime for Cyberspace, a more legally significant border for the Net consists of the screens and passwords that separate the tangible from the virtual world. Many of the jurisdictional and substantive quandaries raised by border crossing electronic communications could be resolved by one simple principle: conceiving of Cyberspace as a distinct place for purposes of legal analysis by recognizing a legally significant border between Cyberspace and the real world. There is placelessness to Cyberspace because the messages accessed there are persistent and accessible to many people. However to be sure that cyberspace is not a homogenous space; groups and activities found at various online locations poses their own unique characteristics and distinctions, and each area will likely develop its own set of distinct rules. V. ASCERTAINING CYBERSPACE JURISDICTION: A COMPARATIVE ANALYSIS The Effects principle justifies a states exercise of jurisdiction when conduct has a substantial effect within a states territory. Although this doctrine was derived from the territorial principle and is often regarded as a subset, the effects principle has its own independent definition and importance. This distinction is crucial, particularly with regard to internet content controversies. This principle was first recognised by the Permanent Court of Justice ruling on the S.S. Lotus case.
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Germany Germany was one of the first countries that took steps to regulate internet information that was legal in the hosting country but illegal pursuant to German law. In 1998, Germany prosecuted and sentenced Felix Somm, the manager of a subsidiary of the American Company CompuServe for distribution of Online Pornography in its newsgroups. The court found that Somm was subordinate to the mother company and thus he was liable for the illegal content on the website.

However this was not a landmark decision with respect to jurisdiction and the stance was reiterated by the Toben case. In an opinion that found Frederick Toben subject to criminal liability for Holocaust Denials on the internet, the Federal Court of Justice elaborated extensively on the relevance and applicability of the effects principle to the

facts of the case. In turning to jurisdiction, the court noted that since the Internet is capable of disseminating information on a global scale, the website material prohibited by the statutes was easily accessible in Germany. Furthermore the Toben Case established that the addresses of the revisionist articles were Germans, notwithstanding the fact that the articles were written in English. Finally in determining jurisdiction the Court concluded that there were harmful effects of the communication in Germany and therefore it was legitimate to assert jurisdiction under Section 3 and 9 of the German Penal Code which contain a combination of the territorial and effects principle. France French Criminal Law is applicable to all offences committed within Frances territory pursuant to Article 113(2) of the French Criminal Code. However the French Criminal Code does not require the offense to be exclusively committed in the French territory; it is enough that on some of the elements of the offense is present within the French territory, thus subjecting it to French Jurisdiction. The most notorious illustration of this principle is the Yahoo Case. In Yahoo, French Court ordered Yahoo to restrict French citizens access to Nazi information and paraphernalia. Though American Courts had refused to enforce the French Courts order, a brief overview of the French Courts jurisdiction for exercising jurisdiction over Yahoo is meaningful to the present analysis. Initially the French Court justified Jurisdiction on the following grounds: (1) Sale of Nazi memorabilia objects is a criminal activity; and (2) there was a harm present on the French territory since French users could easily view the auction site. On appeal the French Court acknowledged that the Yahoo site is in general directed principally towards surfers based in US having regard notably to the items posted for sale, the methods of payment envisaged, the terms of delivery. Nevertheless the court refused to further develop the argument stating that the auctioning of objects representing Nazi symbols and ideology.may be of interest to any person and the simple act of displaying such objects in France violates Article R645-1 of Penal Code and therefore a threat to internal public order . The court found this was sufficient basis to assert jurisdiction over the case and to rule that matter.
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Australia Of all the cases involving jurisdiction on the Internet, the Gutnick case is considered to be one of the most important. In Dow Jones & Co v Gutnick , the High Court of Australia heard the first internet defamation case involving a foreign defendant who was physically absent from the country, but present via the Internet. The case involved defamatory statements regarding an Australian resident, Joseph Gutnick, which appeared on the Internet site of the American based magazine Barons Online. The Australian High court elaborating extensively on the issue of jurisdiction, asserted jurisdiction under the effects principle, stating activities that have effects beyond the jurisdiction in which they are done may properly be the concern of the legal system in each place.
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With regard to Jurisdiction, the High Court mainly addressed two issues. First the High Court examined the location where the defamatory statements were published. The High Court distinguished between the following two meanings of publishing: (1) the (publishers) act of publication; and (2) the fact of publication (to a third party). The

high Court then posed the following question: if the places in which the publisher acts and the place in which the publication is presented in comprehensible form are in two different jurisdictions, where is the tort of defamation committed. The High Court found that since material placed on the internet is not available in comprehensive form until downloaded on the computer it is where that person downloads the material that the damage to reputation may be done. Consequently the High Court found that the tort of Defamation was done in Australia. Secondly the High Court addressed the issue of whether an internet exception was necessary and answered in the negative: Whilst the Internet does indeed present many novel technological features, it also shares many characteristics with earlier technologies that have rapidly expanded the speed and quantity of information distribution throughout the world..Generally speaking, it is undesirable to express a rule of the common law in terms of a particular technology Like the French colleagues, the Australian court remained unimpressed by the appellants argument, which claimed that the difficulty or impossibility of enforcing the judgment in another jurisdiction may amount to a practical reason for providing relief to the objectioning foreign party on one or more of the grounds of objection raised in this case. Thus the abovementioned experiences of the various nations illustrate that the Courts have interpreted the effects principle as the jurisdictional doctrine justifying the broadest application of state authority in Internet content controversies. As a result individuals engaging in online communications lack adequate notice and certainty regarding the laws governing the internet activities. If a particular country prohibits the internet content, the informations accessibility within the country provides sufficient grounds for jurisdiction according to various courts interpretation of the effects principle. VI. THE INDIAN PERSPECTIVE Each law has its own criteria, but for a person to be hauled in Court for any offence committed for any law then he has to be a citizen of India and he should have the mens rea and the actus reu .The Internet explosion has generated many jurisdictional disputes, putting the onus on courts to determine how to apply historic concepts regarding personal jurisdiction to the boundary-less world of the Internet. With so many outsourcing activities in India and the popularity of networking websites, a fresh continuum of cases related to Personal Victimization and Economic Offences in the nature of data protection, cyber defamation, security, etc have evolved. Hacking initiated at one place adversely affects any other place/institution and brings them to limbo. These can only be contained by the effective widening of the reach of law. 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. What emerges as the major issues of concern are, jurisdiction to adjudicate a dispute at a particular location (a forum/site), the law applicable to the dispute or choice of law and the recognition and enforcement of judgments in courts in foreign jurisdictions.
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The law in this regard is not sufficient and the problem of violations of cyber jurisdiction can be tackled properly either by making a separate law in this regard or by making suitable amendments in the already existing Information Technology Act, 2000. In the absence of the political and legislative will to fill in this lacuna, the judiciary has to play a proactive role and construe the provisions of existing laws in a liberal and purposive manner. There are three principal legislations in India which are of relevance. The issue of cyberjurisdiction in India has been equated to territoriality and for extra-territorial reach the effects principle has been used. The Information Technology Act, 2000

The Act brings within the jurisdiction of Indian court any act which is an offence under the Act and committed either within or outside India. 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. Further, Section 75 of the Act also extends jurisdiction to any offence or contravention committed outside India by any person. Section 75 of the Act implies that the Act shall apply to an offence or contravention committed outside India by any person if the act or conduct constituting the offence involves a computer, computer system or computer network located in India .This Section stipulates that the nationality of a person is not a relevant consideration. However, the Indian law is silent about jurisdiction matters which may be initiated by any extra territorial (foreigner) person which have impact in India. Also there is no specific guidelines regarding the matter that what would be the forum for the trial. 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 CrPC 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
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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 the Subjective Territoriality concept and the 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 corporates 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.
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In the famous case, a complaint was filed by Sony India Private Ltd, which runs a website called, 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 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 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. VII. SUGGESTIONS The different courts with their own prudence and applying the diverse principles of jurisdiction would lead to a situation which would bring about lack of uniformity, indecision and would render the law ineffective. The menace brought about by the violation of cyber jurisdiction can be effectively curbed, if not completely eliminated only if the organs of the Constitution work collectively and in harmony with each other. In this regard significant changes need to be brought forth in the various layers of governance. Jurisdiction is a highly debatable issue as to the sustenance of any suits, which has been filed. Today with the growing arms of cyber space the territorial boundaries seem to vanish. Thus the concept of territorial jurisdiction as envisaged under the various Sections of Cr.P.C. and of the I.P.C. will have to give way to alternative method of dispute resolution which can ensure a speedier disposal of cases. The legislature can provide its assistance to the benign objective of bringing an end to the jurisdictional issues in cyberspace by enacting appropriate statutes. In this regard a new chapter dealing with Cyber jurisdiction can be added to the already existing statues to make them compatible with modern enactments. On the same lines provisions dealing with cyber jurisdiction can be incorporated in the Information Technology Act, 2000 by way of its amendment. This would effectively define the limits of cyberspace and thus would be the determining factor in the jurisdictional conflicts in cyberspace. The Central Government and the State Governments can play their role effectively by making various rules and regulations dealing with the issues of cyber jurisdiction and its facets from time to time. Another important safeguard is to use the latest technology to counter these jurisdictional issues. A good combination of the latest security technology and a law dealing with cyber jurisdiction is thus needed. Further, the government can also block web sites (even those developed and hosted outside India) in case it finds that the site has some matter which can lead to controversy, hatred or can go against public interests. Through these means of content filtration it ensures effective surveillance. The IT Act 2000 is silent upon the mode of effective control over the Internet through blocking of websites. Express provisions must be made in this regard. VIII. CONCLUSION With the rapid advancement in technology over the years, the world has been divided into two parts: one with digital presence and the other with digital distance. This digital divides looms large over the future of the present generations. Our vulnerability increases with the perceived value of the reliance on this technology. The lack of consistency in the regulations or legal principles followed to settle disputes of similar nature arising in cyberspace at different places of the world has caused huge confusion; the results have been hysterical. Thus a holistic approach to integrate cyberspace jurisdiction is the need of hour.

Through this paper it has been suggested that a proper way to analyse cyberspace governance is to start from the fundamental question: what is the essence of cyberspace governance? From a socio economic perspective of cyberspace governance, we develop two alternate ways that local knowledge and universal values can interplay to shape the nature of cyberspace governance. The first is called vertical-ism which represents the primary application of local knowledge with supplement from universal values. The second is called Horizontal-ism which represents the primary application of universal values with supplement from local knowledge. The realistic proposal is to apply the territorial principle and the active nationality principle for determining jurisdiction in internet content matters and broaden their growth perspective. This approach would provide foreseeability of legal order and at the same time would adequately answer the enforcement concern limiting the jurisdiction to the controversies that the state can effectively enforce. In the Tben case, the fact that the web pages in question were written in English did not prevent the German Federal Court from affirming jurisdiction, even though its implication could be that the targeted audience was not the internet users in Germany. Also in the Yahoo! Auction case, the consideration of intention did not lead to the limitation of jurisdiction, the unintentional character of the act in question was explicitly recognized by the court, but it did not prevent the court from affirming jurisdiction. Thus we find that courts around the world have been trying to interpret their laws and statutes in the broadest possible manner as to overcome the difficulties of cyber jurisdiction and even in the Gutnick case the Australian High Court held that the difficulty or impossibility of enforcing the judgment in another jurisdiction was not an acceptable plea. Cyber Courts and Cyber arbitral tribunals should have jurisdiction to solve all actions taking place on the Net and the enforcement of their awards and decisions will be made according to international conventions on recognition and enforcement of foreign awards and e-awards. Thus the needs of hour is significant legislative activism over the issue of cyberspace jurisdiction and establishing of a mechanism that would streamline the various facets of internet content controversy and help to instil the confidence of netizens over system of cyber governance.

1 Reidenberg.R.Joel , Lex Informatica : The Formulation of Information Policy Rules Through Technology, 76 Texas.Law.Rev p553, 554-55 (1998) (Describing the Regulatory Role of Technological Capabilities and System Design Choices). 2 Prof.Dan Hunter makes an interesting critique of the open source movement that suggests a similar political battle for the control of intellectual property rights. See Dan Hunter, Culture War(Aug.10,2004) unpublished manuscript , available at ( Accessed on 13thJanuary,2009 at 18:45hrs) 3 D Post, Against Against Cyberanarchy,17 Berkley Technology Law Journal (2002) 1371

Note: That there is a necessary distinction to be drawn, as the answer directly impacts upon the manner in which the Internet is to be regulated. 4 See generally Katsh Ethan M, The Electronic Media and The Transformation Of Law(New York, Oxford University Press, 1989) p 92-94 ; Katsh Ethan M.Law In A Digital World (New York: Oxford University Press, 1995) p 57-59,218. 5 As given in Starke, J.G., Introduction to International law (Butterworth International Edition,1988) 6 952 F Supp 1119 (WD Pa, 1997) (hereinafter Zippo). 7 317 F.3d 467 (5th Cir.2002) (cited in Defamation Suit over Pan Am 103 Article Dismissed, Computer & On-line Industry Litigation Reporter (10th , 2003) 8 130 F.3d 414 (9th Cir. Dec. 1997). 9 937 F. Supp. 161(D. Conn. 1996) 10 2002 US. Dist. LEXIS 2043 (D. Kan. 2002). 11 1997 U.S. Dist. LEXIS 19317 (1997) 12 1997 U.S. Dist. LEXIS 18857 (D. Mass. Sep. 30, 1997), 994 F.Supp. 34, 36-37 (D.Mass.1997). 13 1997 U.S. Dist. LEXIS 19317, accepted, mot. denied by, 958 F. Supp. 1 (D.D.C. Dec. 19, 1996). 14 2002 U.S. Dist. LEXIS (N.D. Tex. 2002). 15 Note: The objective territorial principle was capable of demonstrating meaningful limits of extraterritorial jurisdiction: when there is no intra-territorial act, the exercise of extraterritorial jurisdiction is not permitted. The effects doctrine theoretically removed this limit,by justifying the exercise of jurisdiction even when there was no intra-territorial act, the justification based on effects alone could justify extraterritorial jurisdiction infinitely. Sec 179 of CrPC also lays down the Effects Principle 16 S.S Lotus (France v. Turkey), [1927] PCIJ Rep. (Ser A) No. 10,at p28. 17 AG Munchen , Urteil vom 25.5.1998 CompuServe Available at (Accessed on 14th Feb,2009 at 20:05 hrs) 18 Bundesgerichtshof [BGH] [Federal Court of Justice], Urt. v. 12. 12. 2000 1 StR 184/00 (LG Mannheim), NJW 54(8), pp. 624628 (2001) [hereinafter referred to as the Tben case (BGH)] 19 Yahoo! Inc v La Ligue Contre le Racisme et LAntisemitisme, 169 F.Supp.2d 1181(N.D.CAL.2001) 20 Ordonnance de rfr, rendue le 22 mai 2000, Tribunal de Grande Instance de Paris, No. RG:

00/05308, 00/05309 [hereinafter referred to as the Yahoo! Auction case (1a)]. The translation is taken from the Yahoo! v. LICRA case (2006). Note: [B]y permitting [anti-Semitic]objects to be viewed in France and allowing surfers located in France to participate in such a display of items for sale, the Company Yahoo! Inc. is therefore committing a wrong in the territory of France, a wrong whose unintentional character is averred but which has caused damage to be suffered by LICRA and UEJF, both whom are dedicated to combating all forms of promotion of Nazism in France. 21 Available at ( Accessed on 10th January,2009 at 19:45 hrs) 22 [2002] HCA 56 (10 December 2002); (Austl.2002) 210 C.L.R. p575,576 23 Id at p576 24 Id at 596 25 Literally implies "guilty mind." The intent required to commit the crime. It is a prerequisite to conviction, for a crime involving a moral wrong, but it is not a prerequisite for an act that is a crime only because a statute designates it to be a crime, 26 Wrongdoing: activity that transgresses moral or civil law 27 Hereinafter referred to as the Act 28 Sec. 4 reads as follows: Extension of Code to extra-territorial offences - The provisions of this Code apply also to any offence committed by: (1) any citizen of India in any place without and beyond India; (2) any person on any ship or aircraft registered in India wherever it may be. Note: In this sec. the word offence includes every act committed outside India which, if committed in India, would be punishable under this Code. 29 Hereinafter referred to as the Code. 30Sec. 188 Offence committed outside IndiaWhen an offence is committed outside India (a) by a citizen of India, whether on the high seas or elsewhere; or (b) by a person not being such citizen, on any ship or aircraft registered in India. he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found.

31 (2001) 4 SCAPE 233. 32 Being Suit No. 1279/2001 at (Accessed 21:10 hrs) 33 Sec. 67 of the Information Technology Act, 2000. 34 Available at on 15th Jan 2009 at 1705hrs) 35 Sec. 418 deals with cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect; Sec 419 deals with the punishment for cheating by impersonation and Sec. 420 deals with cheating and dishonestly inducing delivery of property. 36 (1999)4 SCC 567 Total shows: 1119 Author: Anand Singh Mobile-9997252076 and Soumava Chatterjee Email- Mobile- 9997609178 University: ICFAI Law School Course: BBA. L.L.B(Hons) Presently in the 8th Semester (IVth year) of the 2005-2010 Batch available Feb,09 at