Jurisdiction (by default) is the practical and ultimate authority within the legal society to administer, review and to execute laws and regulations within a well-defined area of region and responsibility. Therefore, immediately following the commission of a crime within a particular state, the judicial body in that province would have the jurisdiction to hear the matter. However, which court will have the authority and seat to settle and listen to a crime that occurred on the web? The question we raise here is how does one determine and find the right venue and court that has the authority to adjudicate and decide on internet crimes? Now let's take this a step further. What happens in cases where a crime is committed by a corporate entity that has practically no physical office anywhere on the planet? Is a globally accepted IT Law practically possible?
An abundance of confidential data gets stored in a dark fluorescent room of every office. This sensitive data may be simple log files worth nothing or sensitive trade secrets worth millions. It is hence crucial for corporates and multinationals to recognize cyber crimes and identify the courts that would have the jurisdiction to settle and hear their rightful claims. The virtual world of internet seamlessly connects parties from one part of the world to the other. Someone based in remote part of Northern Asia may well be in a position to hack and gather information from a computer system owned by a multi-national in the United States.
In general matters, court's jurisdiction depends on: i) defendant's place of residence, or ii) the states where the cause of action arose. Now, speaking specifically of cyber crimes, such crimes occur within the virtual network using electronic means. Every corporate, small or big is today prevalent with technology and deploy primary to state of the art infrastructure including servers that serve the evolving requirements for robust, agile and heavy workloads through flexibility, modularity, and ease of operation. That said, the location of the company and its server need not be within the same vicinity or for that matter - even within the same country. A company based in Singapore may deploy its servers in Romania, for instance. Also, web users do not wear an invisible cloak to conduct their activities online. Online users are subject to domestic laws of their own country of residence. However, for matters on cyber crimes, such users may be tried and sued in another country where anyone alleges the individual of having committed an internet related crime. For these reasons, jurisdictional aspect has a large role in internet related crimes. The important question about internet jurisdiction is to determine whether to regard cyberspace as a possible physical location or whether to pretend that the web is a unique world altogether! Till date, there is no unified legislation on internet accorded and accepted by countries globally. The terms and conditions for a website in one country are till date different from that of the other.
The American View
The due process clause under the Fourteenth (14th) Amendment to the US Constitution has prescribed the validity of personal jurisdiction. The US courts often resort to personal jurisdiction as a tool to determine the seat and power to adjudicate. Accordingly, action cannot be brought against someone overseas unless an underlying relation exists that would allow the defendant to expect that matter is being instituted against him in a particular forum. For instance, the US lower courts have held that an individual act of creating a hosting a domain available on world-wide-web does not by default confer internet users to general jurisdiction all across the country. That said, the US Supreme Court has held that courts can confer personal jurisdiction over non-residents where the only source of contact with the country was the internet. The Supreme Court, however, did not evaluate any technological impacts on personal jurisdictional aspects.
The above findings of Supreme Court elucidated in the infamous matter of Zippo Manufacturing vs. Zippo Dot Com, Inc. where the Plaintiff leveled trademark infringement violation against the Defendant on the premise that Defendant provided online services using their distinct name Zippo. The Defendant in the present case was a non-US person. The Courts while deciding on the matter had taken into consideration that Defendant had knowingly dealt with and conducted business with residents of California where Plaintiff's headquarters were based. The Court passed the decision in favor of Plaintiff. The California District Court also adopted a similar resolution in the case of Panavision International, L.P. v. Toeppen where Defendant had designed a website with the sole intention of making Plaintiff purchase the domain from Defendant. The Defendant in the present matter was based in the US state of Illinois and had no direct, or known contact with the State of California. This would mean that the District Court in California did not have a direct jurisdiction over the Defendant. Regardless, the court held that it had particular jurisdiction given the actions of Defendant which had adversely affected the rights and actions of Plaintiff regardless of physical presence within the jurisdiction of the court.
The California (District Court) in McDonough vs. Fallon McElligott, Inc.i had a differing view. In this matter, Plaintiff brought an action against the Defendant on the grounds of copyright violation and resorting to unfair competition laws. The Defendant posted Plaintiff's photographs without consent. The Court refused Plaintiff's claim and held that residents of the State were using Defendant's website and the Internet is a gateway to unrestricted access to information and posted material.
A Look at Europe's Legal Position
The European Union Regulation 1215 introduced in 2012 (the Regulations) provides a broad framework for the jurisdiction of EU courts in civil as well as commercial claims. The Regulations spell out the golden rule that EU courts can assume jurisdiction based purely on the premise of the domicile of the defendant. However, this imposes an impediment in several matters as determining the actual domicile of a party gets complicated even in circumstances where the victim is in effect able to identify the location. That said, the domicile of the defendant does not get determined by his/her IP (internet protocol address). The internet protocol link/address or the "IP address" of a machine only points the location of the computer and the user surfing the web on that PC. The Defendant's domicile, on the other hand, is determined by his actual place where he/she conduct business. The European Commission's Directive on Electronic Commerce dealing with internet laws does not set out express provision concerning court's jurisdiction in deciding on matters related to cybercrime. Also, the United Nations Convention(the Convention) on the use of Electronic Communications in International Contracts has clarified by defining the location of party or parties (domicile) as their place of business.
In cases where parties explicitly agree to submit their disputes to individual court, such court would inevitably assume jurisdiction in the event of any conflict. The only exception to this general rule occurs in cases where a software company is a party to claim and has executed an agreement with other. Cases where corporates, government, and individual undertakings suffer substantial damage on account of hacking or cyber-crime, malicious attack, DDOS attempt or attack due to the acts of the attacker, the state where victim entity or individual is based, the courts within such state could assume jurisdiction and decide on the matter. Likewise, consumers and online buyers also get afforded the right to sue the other in the member state of the domicile. It is fair to mention that the courts within EU have a well-regarded framework to determine the jurisdiction of courts in matters involving cybercrimes. Internet transactions may require and cross many political borders. The legalities involved in cybercrime may differ from one country to other.
The rise in cyber crimes and online attacks, phishing frauds and related criminal acts have and continue to affect individuals, corporate entities, governments, and politicians. Is a global IT law truly possible? Would it be possible to ensure enforcement, impose criminal sanctions and set out clear procedures? Would it at least be possible to identify some broad areas that could cover and address on a global scale? If so, how would the Global IT law impact other domestic legislation(s)? If such law were enacted, would it be possible to raise claims electronically and whether decisions will be rendered online? The Digital Millennium Copyright Act (the DMCA) which is a United States copyright legislation implements two (2) 1996 treaties of the World Intellectual Property Organization (the WIPO) and has made concerted efforts on global copyright violations by allowing individuals and entities to enforce website takedown using its online service. Microsoft has recently taken steps towards receiving requests for copyright violations. A concerted effort would be required to introduce a one piece legislation that could put several questions at rest.
(i) 952 F. Supp. 1119
(ii) 141 F.3d 1316 (1998)
(iii) 3 40 U.S.P.Q. (2d) 1826 (S.D. Cal. 1996)
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