COVER LETTER

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ON CRIMINAL LAW

TITLE :- JURISDICTIONAL ISSUES IN CYBER CRIMES

NAME OF THE PARTICIPANTS

ADDRESS

- 1. ABHINAV MATHUR. 2.DIVYAKANT SINGH RATHORE

- B - 402, Forum Appartment, Nr. Vishwakarma Mandir,
Chandlodia, Ahmedabad, Gujarat, 382481

E-MAIL

- a.mathur80@yahoo.co.in, divyakant.s.rathore@gmail.com

CONTACT NO.

- 09662107116, 07878572167

NAME OF COLLEGE

- Institute of Law, Nirma University

ADDRESS OF COLLEGE

- Institute of Law, Nirma University, Sarkhej Gandhinagar

highway, Post Chandlodia, Via : Gota, Ahmedabad, Gujarat
382481.

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ABSTRACT

In this article, authors endeavour to discuss various International jurisdictional theories and
natural principles which enable nations to enforce their claims of jurisdiction regarding Cyber
crime. Cyber crimes cannot be confined to a finite boundary as internet itself is a global
phenomenon. This attribute raises serious questions regarding jurisdiction. Jurisdictional issue
is a primary bone of contention before the main dispute regarding the crime begins. It is a pre
trial stage. We have provided pertinent inputs of Information Technology Act, 2000 which
present clear position of India. International treaties and conventions are discussed at length
which also tried to discover amicable solution to various aspects related to Cyber crime. As
International conventions not only encompasses jurisdictional issue but also discuss the cyber
crime as a problem in comprehensive manner. Some possible ways for curbing the menace of
jurisdictional issue are being illustrated in the article. In the end, role of nations as a part of
International community has been prescribed.

KEYWORDS

Jurisdictional, Cyber crime, conventions

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CYBER CRIME : A PROLOGUE

In the last few years the use of Internet has grown by leaps and bounds. It can be convincingly
said that internet has become a necessity in the todays Globalised era. It brings new
technology and efficient mode of working in any country. With the advent of good virtues, it
simultaneously bring evils with it. As the rate of users of Internet is increasing the rate of
crime is also increasing. Cyber crime can be classified into 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.1 This article uses the broad definition of cybercrime, referring to offenses falling
into either category.
The internet is not a single entity, no government, individual or company owns it. Online
crime happens without boundaries, as attacks can come from outside the borders of one State,
thus scattering crime scenes through two or more countries, sometimes in more than one
continent. The laws related to cyber crime is haywire in nature which gives opportunity to
cyber criminals to exploit the virtual world which exposes danger to nationals of a state.

JURISDICTION
Cyber crime is not a local crime rather it connects various nations or even continent. This
attribute of trans-nationality has created a serious cause of concern regarding jurisdiction.
Territorial boundaries are of no use in cyber related issues.

Goodman D Marc, Why the Police Dont Care About Computer Crime, 10 HARV. J.L. & TECH., 465, 468-469
(1997), available at <http:// jolt.law.harvard.edu/articles/10hjolt465.html.>

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According to the Legal Information Institute at Cornell University Law School jurisdiction
refers as power of a Court to adjudicate cases and issue order or the territory in which a court
or government may properly execute its power.2 Cyberspace transactions occur simultaneously
in all jurisdictions assumption of jurisdiction by multiple states will lead to jurisdictional
mayhem.
People in one jurisdiction do something such as upload pornography, facilitate gambling, offer
a fraudulent security, send spam, etc. that is costly to stop at another jurisdiction's border and
that produces effects within that jurisdiction deemed illegal there.3 The territorial effects
rationale for regulating these harms is the same as the rationale for regulating similar harms in
the non-Internet cases.4 It may be the case that above acts may not be illegal where it is
generated by a user.
Jurisdiction is synonymous with Power. There exist 3 kinds of power

Power to prescribe This power gives legislature to frame cohesive and adequate
regulatory measures regarding cyber laws and its jurisdiction.5 State had legislative
jurisdiction to regulate activities within territory as well as conduct of its nationals
abroad.

Power to adjudicate This power enable courts to hear disputes and conduct the trial
of a case.6 In other words, State has authority to subject person or things to the process
of its courts, irrespective of fact State is party to the proceedings.7

Majid Yar, Cyber crime and society, London : Sage Publishers (2006).

Goodman, supra note 1.

Jack Goldsmith, The Internet and the Abiding Significance of Territorial Sovereignty, Indiana Journal of
Global Legal Studies, Vol. 5, No. 2, pp. 475-491 (1998). available at http://www.jstor.org/stable/25691116.
5

John Stanton, Terror in Cyberspace. Terrorists Will Exploit and Widen the Gap between Governing Structures
and the Public, American Behavioral Scientist, Vol. 45, p. 1022. (2000).
6

Farooq Ahmad, Cyber Law in India, New Delhi : New Era law Publications (2007)
.
7
Id.

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Power to enforce This gives power to Government to take punitive action against any
act done in contravention of laws and orders.8

In order to lay claim for adjudication by the Court regarding a crime there must be a
compliance of Doctrine of territorial nexus9. There are primary four kinds of jurisdictional
theories which are applied frequently by the courts of one nation and hence taking the rights of
another courts jurisdiction.

Territoriality Theory This theory derive its power from the sovereignty of a state.10 If
a crime is committed in the territory of a particular nation then it has right to have
jurisdiction over it. Traditionally, it was the main basis of claiming jurisdiction but as
the definition of cyber crime changes, this ground automatically weakens.

Nationality Theory Jurisdiction is decided by the nationality of the offender

irrespective of fact the place of commission of crime.11 It cannot be held as a ground
for jurisdiction as its claim is more dependent on the party which is at receiving end of
the crime or the place where misdemeanor is conducted.12

Passive Personality Theory According to this theory the jurisdiction is decided on the
basis of nationality of victim. It is contrary to the above theory.13 Natural principles of
justice aims at giving due return to the victim. Therefore, the jurisdiction of victims

Id.

Article 245(2) of Constitution of India establish that state can enact a law that is beyond the territory and it
cannot be termed as invalid on the basis of extra- territorial jurisdiction.
10

Draft Convention on Jurisdiction with Respect to Crime, arts. 3-10, reproduced in Harvard Law School,
Jurisdiction with Respect to Crime.
11

Kathleen Hixson, Extraterritorial Jurisdiction Under the Third Restatement of Foreign Relations Law of the
United States, Fordham International Law Journal, Volume 12, Issue 1.(1988).
12

Id.

13

Fitzpatrick Joan, Sovereignty, Territoriality, and the Rule of Law, Hastings International and Comparative
Law Review, Vol. 25, p. 313, note 37. (2002).

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place becomes strong14. As sovereignty principle also beckons that nation cannot
encroach another nations territory.

Universality Theory In this theory the nature of offence is given significance. Certain
offences are recognized by the world community such as piracy, slave trade etc. Two
requirements are necessary for assuming jurisdiction: the State assuming jurisdiction
must have the defendant in custody, and the crime must be especially offensive to the
international community.15 In this any competent body that has competency to apply
principles of International law has jurisdiction to hear the issue of cyber crime by this
theory no national law prevail if the cause of the problem is global in nature or it
reflects the concern of global community.16

There can be other ancillary reasons for claiming jurisdiction which depends from case to
case. Jurisdiction depends on the extent to which the criminal activity takes place or has a
substantial effect within the territory.17 The extent to which the defendant or the injured party
has a genuine link (i.e., an ongoing and real relationship) with the forum.18 The character of
the activity plays pivotal role in determining jurisdiction (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).19 Moreover, the extent to which justified expectations will be
protected or harmed by the regulation and to which another country has an interest in
regulating the activity and the likelihood of a conflict with those regulations.20 The importance

14

Id.

15

Jack Goldsmith and Tim Wu, Who Controls the Internet ? New Delhi : Oxford University Press (2006).

16

Id.

17

Restatement (Third) of Foreign Relation Law of the U.S. 403(2)(c).

18

Hixson, supra note 10. 403(2)(d).

19

Id. 403(2) (g), (h).

20

Id. 403(2)(e) and 403(2)(g), (h).

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of the regulation to the international community21 and the extent to which the regulation is
consistent with the traditions of the international community is of prime significance.22
Some case laws will be discussed to substantiate the above agreements. The Supreme Court of
India, in the case of SIL Import v. Exim Aides Silk Importers23, 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. In a leading case of cyber crime, SMC Pneumatics
(India) Pvt. Ltd. v. Jogesh Kwatra24, 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. In the case of R v. Governor of Brixton prison and another25 it
was held by the court that it is thus important that in order to resolve the disputes related to
jurisdiction, the issue of territoriality and nationality must be placed by a much broader criteria
embracing principles of reasonableness and fairness to accommodate overlapping or
conflicting interests of states, in spirit of universal jurisdiction.
Thus traditional rules relating to jurisdiction and competence incorporate a notion of
territoriality. However internet communications are not geographically dependent, because

21

Id. 403(2)(e).

22

Id. 403(2)(f).

23

(1999) 4 SCC 567.

24

Being Suit No. 1279/2001 available at http://cyberlaws.net/cyberindia/defamation.htm (Accessed on 11

October,2012)
25

R v. Governor of Brixton prison and another, [1969] 1 All ER 316.

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there is no necessary connection between an internet address and a physical jurisdiction and
hence it poses diverse challenges and conflicts.

ROLE OF INFORMATION TECHNOLOGY ACT, 2000

Information Technology Act (ITA) 2000 deals with the issues related with cyber crime in
India. S. 1326 and its sub clause deals how to assert the origination of electronic record
which helps in tracing down the place of offender. S. 75 of IT Act, 2000 deals with extra
territorial application of law and it is applicable to any person irrespective of nationality, any
offence committed outside India. Offence must have been committed against computer or
computer network located in India.27 It is always going to be a acid test for Indian courts to
enforce a jurisdiction over foreign nationals. India signed the extradition treaties do not cover
any offences related to Cyber crime.

INTERNATIONAL CONVENTIONS ON CYBER CRIME

It is believed that since the nature of Cyber crime is international in nature, therefore
International conventions and agreements must be ratified by maximum number of nations
under the garb of International co operation. Extradition is one of the examples of
International co-operation. It is also embedded with flaws. Extradition will not be permitted
unless the act constitutes a crime under both state, one to whom request is made and one who
is requesting.28 The domestic law fails when the crime is not recognized under the
perpetrators country.
26

(5) For the purposes of this section, - (a) if the originator or the addressee has more than one place of business,
the principal place of business, shall be the place of business; (b) if the originator or the addressee does not have
a place of business, his usual place of residence shall be deemed to be the place of business; (c) Usual place of
residence, in relation to a body corporate, means the place where it is registered.
27

Apar Gupta, Commentary on Information Technology Act, Wadhwa : Lexis Nexis Butterworth (2011).
Michael A Sussmann, The Critical Challenges From International High-Tech and Computer-Related Crime at
the Millennium, Duke Journal of Comparative and International Law , Vol 9, No. 458. (1999).
28

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Budapest convention on cyber crime held as a matter of priority, a common criminal policy
aimed at the protection of society against cybercrime, inter alia, by adopting appropriate
legislation and fostering international co-operation which came into force in 2004.29 The treaty
was based on certain agendas. The first goal is the establishment of a specific list of domestic
criminal offenses and conduct that are prohibited by the treaty. The second goal is to adopt a
set of procedural tools and powers to properly and effectively investigate crimes. The last goal
is to establish strong mechanisms for fostering international cooperation.30 The offenses are
broken down into four areas of crime, which are fraud and forgery, child pornography,
copyright infringement (intellectual property), and system interferences, which affect network
integrity and availability (covering many aspects of hacking).31 The Treaty from the outset
outlines what areas and provisions will have a different handling of the procedural or
substantive legal processes. The core problem is that the Treaty lacks a dual criminality
provision. A dual criminality provision would require that for an offense to be considered a
crime under the Treaty, it would have to be a crime in both the nation it was committed in, and
in the nation whose assistance is being lent.32 Thus, it closes doors for the possibility of
extradition.
The Supreme Court in Daya Singh Lahoria v. Union of India33, held that A fugitive brought
into this country under an Extradition decree can be tried only for the offences mentioned in
the extradition decree and for no other offences and the criminal courts of India will have no
jurisdiction to try such fugitive for any other offence. The law of extradition, is a dual law. It
29

Jack L. Goldsmith, The Internet and the Abiding Significance of Territorial Sovereignty, Indiana Journal of
Global Legal Studies, Vol. 5, No. 2 pp. 476. (1988) available at http://www.jstor.org/stable/25691116.
30

Dan Robel, International Cybercrime Treaty: Looking Beyond Ratification , GCIH Gold Certification , SANS
Institute InfoSec Reading Room. (2006).
31

Convention on Cybercrime, Budapest, 23.XI.2001, Additional Protocol

Translations Convention Committee on Cybercrime (T-CY) website

Explanatory Report

Franais

32

Article 24 of Convention on Cyber crime (Budapest) which states that This article applies to extradition
between Parties for the criminal offences established in accordance with Articles 2 through 11 of this Convention,
provided that they are punishable under the laws of both Parties concerned by deprivation of liberty for a
maximum period of at least one year, or by a more severe penalty.
33
2000 CrLJ 256.

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is ostensibly a municipal law, yet it is a part of international law also, inasmuch as it governs
the relations between two sovereign States over the question of whether or not a given person
should be handed over by one sovereign State to another sovereign State. This question is
decided by national courts but on the basis of international commitments as well as the rules of
international law relating to the subject. A major premise of the Treaty is that by fostering
international cooperation, nations can tackle the problem of the borderless nature of
cybercrime by enabling pursuit beyond the borders of a single nation. However, one needs to
examine which countries fall under the auspices of the Cyber crime Treaty and which do not.34
It encompasses the provision related to the situation when two or more nations claiming the
jurisdiction. Consultation and mutual legal assistances should be the means to resolve the issue
of jurisdiction.35 It makes apparent that solution of jurisdictional issue is heavily loaded on the
behavior and intent of the nations.
The sheer number of non signatory nations will create conducive conditions for the cyber
terrorism as there is a involvement of many nations thus creating urge for collective action.
The world as a whole has been of a more reactive nature instead of a proactive one. Laws are
made in many countries after an act of cyber crime is committed because it could not be
prosecuted. While the argument can be made that the Cyber crime Treaty will not manage to
achieve its goals by itself, it still represents a very progressive approach to Cyber crime. These
conventions bring nations under one common thinking cap as the solution to Cyber crime and
its various sub-issues can only be dealt jointly.
CONCLUSION
Cyber attacks do not entail any boundaries. It involves multi- players raising serious concern
of jurisdiction. As the nature of problem is collective, therefore amicable remedy need to be
evolve without deviating to the target of curbing cyber crime. Information Technology Act,
34

Dan, supra note 21.

35

Article 22 of Budapest Convention (2004) which states that When more than one Party claims jurisdiction
over an alleged offence established in accordance with this Convention, the Parties involved shall, where
appropriate, consult with a view to determining the most appropriate jurisdiction for prosecution.

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2000 is a tooth less law as it does not cover all the legal issues related to cyber crime. Even the
recent amendment of 2008 is silence on the issue of jurisdiction.
While adjudicating cyber crimes issues involving multi players the courts must consider the
procedural and substantive policies of other countries whose interest are affected by the courts
assertion of jurisdiction. While extending jurisdiction into the international field, utmost care
and reasonable must be exercised without jeopardizing the natural principles of justice.
There is an urgent need for creating an umbrella law or convention which covers almost all
major crimes related to cyber world and maximum number of nations must be a member of
that convention through ratification. Moreover, specialized court as a sub-division of
International criminal court need to be established at International level that should solely
deals with Cyber issues in which experts related to it should be there to adjudicate the matters.
India has to strengthen the domestic laws and bring significant changes in order to make
strong claim over jurisdiction. Furthermore, it is imperative to build specialized courts which
exclusively deal with the cyber related issues. Mutual legal Assistance and international cooperation can pave the way for swift disposal of cyber issues. Developed nations need to take
initiative in discovering the panacea of cyber crime. International conventions and treaties can
one of the tools to consolidate the niche regarding cyber issues. Jurisdictional issues need to be
harmonized between two or more nations as it is not a real contention rather retaliating against
cyber crimes collectively should form a agenda for nations. Cyber crime will create a daunting
task in front of International criminal law system in coming years.

BIBLIOGRAPHY

Books

Jonathan Clough, Principles of Cyber crime, New York : Cambridge University Press
(2010).
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Majid Yar, Cyber crime and society, London : Sage Publishers (2006).

Jack Goldsmith and Tim Wu, Who Controls the Internet ? New Delhi : Oxford
University Press (2006).

Farooq Ahmad, Cyber Law in India, New Delhi : New Era law Publications (2007).

Apar Gupta, Commentary on Information Technology Act, Wadhwa : Lexis Nexis

Butterworth (2011).

Articles

Michael A Sussmann, The Critical Challenges From International High-Tech and

Computer-Related Crime at the Millennium, Duke Journal of Comparative and
International Law , Vol 9, No. 458. (1999).

Fitzpatrick Joan, Sovereignty, Territoriality, and the Rule of Law, Hastings

International and Comparative Law Review, Vol. 25, p. 313, note 37. (2002).

Jack Goldsmith, The Internet and the Abiding Significance of Territorial Sovereignty,
Indiana Journal of Global Legal Studies, Vol. 5, No. 2, pp. 475-491 (1998). available at
http://www.jstor.org/stable/25691116.

John Stanton, Terror in Cyberspace. Terrorists Will Exploit and Widen the Gap
between Governing Structures and the Public, American Behavioral Scientist, Vol.
45, p. 1022. (2000).

Goodman D Marc, Why the Police Dont Care About Computer Crime, 10 HARV. J.L.
&

TECH.,

465,

468-469

(1997),

available

at

<http://

jolt.law.harvard.edu/articles/10hjolt465.html.>

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Kathleen Hixson, Extraterritorial Jurisdiction Under the Third Restatement of

Foreign Relations Law of the United States, Fordham International Law Journal,
Volume 12, Issue 1.(1988).

Convention on Cybercrime, Budapest, 23.XI.2001, Additional Protocol Explanatory

Report Franais Translations Convention Committee on Cybercrime (T-CY) website.

Dan Robel, International Cybercrime Treaty: Looking Beyond Ratification , GCIH

Gold Certification , SANS Institute InfoSec Reading Room. (2006).

Jack L. Goldsmith, The Internet and the Abiding Significance of Territorial

Sovereignty, Indiana Journal of Global Legal Studies, Vol. 5, No. 2 pp. 476. (1988)
available at http://www.jstor.org/stable/25691116.

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