Ad idem ‘12 | Jurisdictional Issues in Cyber Crimes | | | | |
Arashdeep Singh Gurm
Address: #181 Anand Nagar A,
Gurudwara Street
Patiala(147001)
E-Mail Id: arashdeepgurm@gmail.com
Contact Number: 7508729986,9646020181
RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB
Mohindra Kothi, Mall Road, Patiala - 147 001 (PUNJAB)

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ABSTRACT

In this essay I wish to discuss the various types of crimes that are emerging with special reference to developing countries like India By developing we mean where growth of Information Technology is rampant but still it has not reached its peak. Cyber crimes can take place across various jurisdictions and hence the legal issue of jurisdiction of International Courts and country specific Indian Courts arises. Throw light on the present system in India, how it is ineffective and also upon international treaties and legal solutions to deal with the same. I have suggested possible ways to tackle the problem taking into consideration the domestic laws in India. The inefficiency of legislature to enact a more user friendly law is also examined in detail. Turning back our focus on the main legal dilemma of Jurisdiction of Cyber Crime Courts we have suggested a model that would be successful in India taking into consideration its working in other countries. In my concluding remarks a problem solution approach is taking where we have addressed the issue and after due consideration the solution is suggested. If proposal taken and implemented with effectiveness it would lead to a better result and can be followed by other nations in solving the predicament regarding cyber crimes and criminals.

In recent years, use of the Internet has grown at an explosive rate. However, there currently exists no single entity to control the enormous amount of information that is transmitted through it. In its beginnings, the Internet was essentially a network of linked computers owned by the military, defence contractors, and university laboratories conducting defence-related research this network was specifically designed to be a decentralized and completely self-maintaining system, which was capable of transmitting information without human control. The point of this was “to allow vital research and communications to continue even if portions of the network were damaged.”While this system may function well during a war or other catastrophic event, it does not allow for efficient monitoring. There is no single entity that supervises the Internet. It functions only because of the millions of separate computers that independently decide to transfer data.
Therefore, the task of preventing illegal conduct on the Internet has fallen on the courts of individual nations. However, one very important question remains. Which courts should govern? Who has jurisdiction over cyberspace? In one recent case, a French court assumed jurisdiction over Yahoo, an American online content provider, and ordered it to remove web pages showing Nazi memorabilia, material that is illegal to view in France but legal almost everywhere else. In another case, a British court held a British subject liable for posting photographs on an American web server considered obscene in Britain but not in the United States.
The challenge in determining if and when courts have jurisdiction over activities conducted on the Internet would not be great if the Internet were confined to a single geographical area, or if it were neatly divisible along territorial boundaries into distinct local networks. By its nature, however, the Internet is international: it disrespects local and national jurisdiction.
The challenge, therefore, is to create rules that work smoothly across local, national, and international boundaries. The objective of this essay is to discuss the jurisdictional problems that might arise due to cyber crimes in India and suggest solutions to address the same.
The terms “cyber crime,” “computer crime”, “Information Technology crime,” and “high-tech crime” are often used inter-changeably to refer to two major categories of offenses: in the first, the computer is the target of the offense; attacks on network confidentiality, integrity and/or availability-- i.e. unauthorized access to and illicit tampering with systems, programs or data - all fall into this category; the other category consists of traditional offenses--such as theft, fraud, and forgery - that are committed with the assistance of or by means of computers, computer networks and related information and communications technology. This article uses the broad definition of “cybercrime,” referring to offenses falling into either category.
Cyber crimes range from economic offenses (fraud, theft, industrial espionage, sabotage and extortion, product piracy, etc.) to infringements on privacy, propagation of illegal and harmful con-tent, facilitation of prostitution and other moral offenses, and organized crime. At its most severe form, cyber crime borders on terrorism, encompassing attacks against human life and against national security establishments, critical infrastructure ,and other vital veins of society. In cyber terrorism, as in cyber crime, the “cyber” component usually refers to perpetrating qualitatively new offenses enabled by information technology or integrating cyberspace into more traditional activities (such as planning, intelligence, logistical capabilities, finance, etc.). The categories may also overlap, as they frequently do in the cases of capable, computer-savvy offenders.
Unlike traditional crime, cyber crime is global crime. As a European Commission report explains, “computer-related crimes are committed across cyber space and do not stop at the conventional state-borders. They can be perpetrated from anywhere and against any computer user in the world.” Technology gives the ability to loot and inflict harm upon the entire world with little risk of apprehension and allows for experimenting with new varieties of criminal endeavours.
Jurisdiction, of course, defines three kinds of power: the power to prescribe, the power to adjudicate, and the power to enforce. The first of these relates principally to the power of a government to establish and prescribe criminal and regulatory sanctions; the second, to the power of the courts to hear disputes, especially civil disputes; and the third, to the power of a government to compel compliance or to punish noncompliance with its laws, regulations, orders, and judgments.
The internet may be seen as multi–jurisdictional because of the ease which a user may access a website anywhere in the world. It may even be viewed as a jurisdictional in the sense that from the user’s perspective state and national border are essentially transparent. 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. Commentators have voiced the notion that cyber space must be treated as a separate jurisdiction. In practice, this view has not been supported by the courts or addressed by law makers. The two main areas of cyber law requiring further clarification are cyber crime and jurisdiction. For instance in cyber laws there are only a limited number of cases on point and no major statutory scheme on the books. In cyber jurisdiction, the courts must address the question of which law–makers has jurisdiction over actions taking place on the internet. In the few cases the courts have adjudicated they have applied long term statutes and personal jurisdiction principles in making decisions.
In order for a national court to adjudicate criminal and regulatory sanctions internationally, there must be some connection, or nexus, between the regulating nation (the forum) and the crime or criminal.
Four nexuses have been invoked by courts to justify their exercise of jurisdiction.
The territoriality nexus holds that the place where an offense is committed-in whole or in part-determines jurisdiction.
The nationality nexus looks to the nationality or national character of the person committing the offense to establish jurisdiction.
The protective nexus provides for jurisdiction when a national or international interest of the forum is injured by the offender.
The universality nexus holds that a court has jurisdiction over certain offenses that are recognized by the community of nations as being of universal concern, including piracy, the slave trade, attacks on or the hijacking of aircraft, genocide, war crimes, and crimes against humanity.
It is not enough that these nexuses exist; the connection between the forum and the person or activity also must be “reasonable.” In determining reasonableness, courts consider one or more of the following factors, depending on the circumstances of the particular case: * the extent to which the criminal or regulated activity takes place, or has a substantial, direct, and foreseeable effect, within the territory of the forum; * the extent to which the defendant or the injured party has a “genuine link” (i.e., an ongoing and real relationship) with the forum; * the character of the activity (that is, its importance to the forum, whether other countries regulate it, and the extent to which countries generally regard it as appropriate for regulation); * the extent to which justified expectations will be protected or harmed by the regulation; * the extent to which another country has an interest in regulating the activity and the likelihood of a conflict with those regulations; * the importance of the regulation to the international community;and * the extent to which the regulation is consistent with the traditions of the international community.
There is one final preliminary matter to note before we look at examples of cases in which the different nexuses have been used. That is: the nexuses are not mutually exclusive. Courts routinely rely on more than one in assuming jurisdiction.
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.
Adjudicating Officers Appointed by Controller
The Controller appoints adjudicating officers to hear and resolve alleged violations of the aforementioned rules and determines the geographical locations where each may exercise jurisdiction. After giving all parties an opportunity to present their cases at a hearing, the officer will render a decision in the matter. The officer will take into account: the wrong doer’s “gain of unfair advantage;” the amount of loss caused by the wrongful acts; and the number of times the wrongdoer committed the acts.Penalties will be imposed or awards will be made on a case-by-case basis. The qualifications for adjudicating officers will be stated by the government and will include both information technology experience and legal/judicial experience. The officers‟ authority will be both civil and criminal in nature.
Cyber Regulations Appellate Tribunal
The government of India is authorized to establish one or more Cyber Regulations Appellate Tribunals, and to specify the “matters and places” pertinent to their jurisdiction. Their general purpose is to serve as the first appellate level to which cases may be appealed from decisions of the Control Board or adjudicating officers established in the ITA. No other court has jurisdiction to meddle in the affairs of an adjudicating officer under the ITA or in the affairs of the Appellate Tribunal by issuing an injunction against their orders or acts, so long as the adjudicating officer or the Tribunal has been properly empowered by the ITA. If the parties previously agreed to an order of an adjudicating officer, it may not be appealed. An appeal to the Tribunal must be filed within 45 days from the date on which the aggrieved party received a copy of the order of the Controller or the adjudicating officer. The Tribunal will make every effort to dispose of each appeal within six months from the date it is received. The Tribunal will hear all parties to the controversy and may affirm the previous order, modify it or set it aside. All parties and the concerned Controller or adjudicating officer will be given a copy of the Tribunal‘s order.
Appeal to High Court
Decisions rendered by the Appellate Tribunal may be appealed to the High Court. The appeal must ordinarily be filed at the High Court within 60 days after the decision has been received. However, for good cause shown, the High Court may allow up to an additional 60 days in which to file the appeal.

Conclusion
In the present scenario where the cyber crimes are increasing to an alarming extent, the present need of the hour is to have broad based convention dealing with criminal substantive law matters, criminal procedural questions as well as with international criminal law procedures and agreements. The IT Act, 2000 would be crippled without proper means and ways of implementing it. To overcome the difficulties, necessary amendments must be made to The Code of Criminal Procedure, 1973. Moreover, it is important to note that India at present does not have a proper extradition law to deal with crimes that have been committed over the Internet. To address this issue, India should become a signatory to the Convention of cyber crimes treaty and should ratify it. This move would go a great deal in resolving the jurisdictional controversies that may arise in cyber crime cases. Furthermore, have suggested the setting up of special courts, Cyber Infringements Courts‟ to replace the Adjudication Officer under the IT Act. These courts would be dealing exclusively with cyber law and other related matters like trademark etc, to ensure efficient delivery of justice.

BIBLIOGRAPHY

* The Information Technology Act, 2000 * Bruce Sterling, The Hacker Crackdown (1992) * Benjamin Wright, The Law of Electronic Commerce (1991)
SPECIAL ISSUES OF JOURNALS ON CYBERLAW ISSUES * Law in Cyberspace, 55 U. Pitt. L. Rev., no. 4 * Legal Regulation of the Internet, 28 Conn. L. Rev., no. 4 * Restatement (Third) of Foreign Relations Law of the U.S * Jurisdictional Issues In The Prosecution And Punishment Of Cyber Crime by Amal S.
ARTICLES
* Dan L. Burk, Patents in Cyberspace: Territoriality and Infringement on Global Computer Networks, 68 Tul. L. Rev. 1 (1993) * Dan L. Burk, Trademarks Along the Infobahn: A First Look at the Emerging Law of Cybermarks, 1 Rich. J. L. & Tech. 1 (1995)
WEB SOURCES 1. http:// news.zdnet.co.uk/story/0,,t269-s2082683,00.html. 2. http://news.bbc.co.uk/hi/english/sci/tech/newsid_ 382000/ 382152.stm. 3. http:// jolt.law.harvard.edu/articles/10hjolt465.html 4. http:// europa.eu.int/ISPO/eif/InternetPoliciesSite/Crime/CrimeCommEN.html

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[ 1 ]. Ligue Contre la Racisme et l’Antisemitisme v. Yahoo, Inc. See Yahoo Ordered to Bar French from Nazi Web
Sites, (Nov. 20, 2008), at
[ 2 ]. Crown v. Waddon. See Chris Nuttal, Police Hail Net Porn Ruling, BBC News (January 1,2010), at

[ 3 ]. Marc D. Goodman, Why the Police Don’t Care About Computer Crime, 10 HARV. J.L. & TECH., 465, 468-
469 (1997), available at
[ 4 ]. See- Bruce Sterling, The Hacker Crackdown (1992)
[ 5 ]. Communication from the European Commission to the Council and the European Parliament, Creating a Safer
Information Society By Improving the Security of Information Infrastrutures and Combating Computer-Related
Crime 9 (2000),
[ 6 ]. Restatement (Third) of Foreign Relations Law of the U.S. § 401 (1987)
[ 7 ]. Research in International Law: II. Jurisdiction with Respect to Crime, 29 Am. J. Int’l L. 435 (Supp. 1935)
[ 8 ]. Jurisdictional Issues In The Prosecution And Punishment Of Cyber Crime by Amal S. R.
[ 9 ]. ibid
[ 10 ]. Jurisdiction - The Overriding Conceptual Problem in Cyberspace by S. Ravishankar
[ 11 ]. Id. §§ 402, 404; Draft Convention on Jurisdiction with Respect to Crime, arts. 3-10, reproduced in Harvard
Law School, Jurisdiction with Respect to Crime.
[ 12 ]. An offense does not have to be consummated within the forum‟s territory for the forum to have jurisdiction. If an offense is commenced within the forum, even if it is completed or consummated abroad, the forum will have jurisdiction. Harvard Law School, Jurisdiction with Respect to Crime, supra note 8, at 484-87. Logically, jurisdiction based on the place where an offense was commenced is the converse of jurisdiction based on the effects nexus, which focuses on the place where the offense is consummated
[ 13 ]. Restatement (Third) of Foreign Relations Law of the U.S. § 404 (1987
[ 14 ]. See Ray August, Public International Law 345-46 (1995)
[ 15 ]. Restatement (Third) of Foreign Relation Law of the U.S. § 403(2)(c)
[ 16 ]. Id. § 403(2)(d)
[ 17 ]. Id. § 403(2) (g), (h).
[ 18 ]. Id. § 403(2)(e).
[ 19 ]. Id. § 403(2)(g), (h).
[ 20 ]. Id. § 403(2)(e).
[ 21 ]. Id. § 403(2)(f).
[ 22 ]. S.46(2) of The Information Technology Act, 2000
[ 23 ]. S.47 of The Information Technology Act, 2000
[ 24 ]. S.46(1) of The Information Technology Act, 2000
[ 25 ]. S.48 of The Information Technology Act, 2000
[ 26 ]. S.57(1) of The Information Technology Act, 2000
[ 27 ]. S.61
[ 28 ]. S.57(2)
[ 29 ]. S.57(3). However, for good cause shown, the Tribunal may allow an appeal to be filed beyond the 45 day cutoff. ITA, The Limitation Act of 1963 applies to the Tribunal. Id. S.60
[ 30 ]. S.57(6)
[ 31 ]. S.57(4)
[ 32 ]. S. 57(5)
[ 33 ]. S.62