JURISDICTION IN
CYBERSPACE
INTRODUCTION
• In an online environment, the offender and the victim might reside in
different geographical locations governed by different procedural and
substantive laws – probably, in different countries.
• For instance, a person might open an online gambling website while in Las
Vegas. The website is open for all to see and use. It might be legal in Las
Vegas. But, when people access and make use of this website in, say, Qatar,
Australia and Indonesia, the question as to permissibility of offering to
gamble might crop up.
JURISDICTION IN CYBERSPACE
• ‘Jurisdiction’, as applied to a particular claim or controversy, is the power to hear
and determine that controversy.
• It refers to the right to adjudicate on a given point; the local extent within which the
court can and does exercise the right when ascertained.
• The law relating to crimes would generally require that the courts within a state
would have jurisdiction to try and adjudicate upon all such offences committed by a
person within the territorial boundaries of such a court.
• However, the exceptions have been created where even though, technically and
strictly, the offender might not have committed the crime on the soil of the
country, yet the courts would exercise jurisdiction over such an offender.
Theories of Jurisdiction in Criminal Cases
• We have to bear in mind that a State, while framing laws, exercises its legislative
power to (a) regulate; (b) adjudicate upon; and, (c) enforce measures, against
criminal actions.
• Law of regulation of criminal actions encompasses declaring certain acts or
omissions to be a crime and provides for punishment thereof.
• Law of adjudication provides for establishment of courts and defining their
jurisdiction.
• Enforcement measures ensure that the orders of the court are carried out and
persons found guilty are appropriately punished.
Theories of Jurisdiction
• Subjective territoriality
• The substantial part of criminal legislation across the globe is based on the theory
that if an activity takes place within the territory of the particular country, then the
said country has the jurisdiction to regulate and punish for such activity.
• For instance, section 2 of the Indian Penal Code provides for punishment of
offences committed within India.
Theories of Jurisdiction
• Objective territoriality is invoked where the action takes place outside the territory
of the forum state, but the primary effect of that activity is within the forum state.
• Commonly known as the ‘effects’ doctrine is the situation , where the action takes
place outside the territory of a country, but the primary effect of that activity is
within the said country, it assumed jurisdiction.
• For instance, a person from Pakistan shoots across the border and an Indian is
injured in the process. Though the action was initiated in Pakistan, the effect was in
India.
• Section 179 of the Code of Criminal Procedure endorses the effects doctrine.
Theories of Jurisdiction
• Nationality is the basis for jurisdiction where the forum state asserts the right to
prescribe a law for an action based on the nationality of the actor.
• For instance, section 4 of the Indian Penal Code stipulates that the provisions of the
Code would also apply to any offence committed by any citizen of India in any place
without and beyond India.
Theories of Jurisdiction
• Passive nationality is a theory of jurisdiction based on the nationality of the victim.
• Passive and “active” nationality are often invoked together to establish jurisdiction
because a state has more interest in prosecuting an offense when both the offender
and the victim are nationals of that state.
Theories of Jurisdiction
• The Protective principle expresses the desire of a sovereign to punish actions
committed in other places solely because it feels threatened by those actions.
• This principle is invoked where the “victim” would be the government or sovereign
itself.
• This principle is not preferred for the obvious reason that it can easily offend the
sovereignty of another nation.
Theories of Jurisdiction
• Lastly, nations also exercise a Universal jurisdiction with respect to certain offences.
Sea piracy has been, for long, a part of this jurisdiction. Any nation could have captured
and punished pirates.
• For instance, Article 105 of the United Nations Convention on the Law of the Sea
stipulates that on the high seas, or in any other place outside the jurisdiction of any
State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy
and under the control of pirates, and arrest the persons and seize the property on
board.
• It further provides that the courts of the state which carried out the seizure may decide
upon the penalties to be imposed, and may also determine the action to be taken with
regard to the ships, aircraft or property, subject to the rights of third parties acting in
good faith.
General Jurisdiction in Computer Crimes
• The law of jurisdiction with respect to crimes relating to computers is the
same as that relating to traditional crimes.
• The theory of subjective territoriality would apply.
• In India, Chapter XII of the Code of Criminal Procedure, 1973 relates to
jurisdiction of courts with regard to criminal matters. The foremost and
most commonly applied theory of territoriality is embodied in section 177 of
the Code in the following words:
• 177. Ordinary place of inquiry and trial.- Every offence shall ordinarily be
inquired into and tried by a Court within whose local jurisdiction it was
committed.
Application of ‘Effects’ Doctrine in Computer Crimes
• Also known as the ‘consequence’ or ‘terminatory’ theory, the principle is
that where an act is done abroad and the criminal effect is produced here,
the crime is taken to be committed here.
• Both English and American courts have exercised this kind of extra-
territorial jurisdiction.
• Simpson v. State, [92 Ga.41.17S.E.984(1893)]
• Under the Indian criminal law, section 179 of the Code of Criminal
Procedure, 1973 embodies the effects doctrine.
Convention on Cyber Crime – Council of Europe
• The Cyber Crime Convention of the Council of Europe prescribes for the
issue of jurisdiction in Article 22.
• It requires that every member-nation should adopt legislative measures to
establish jurisdiction over any offence established under the Convention,
when the offence is committed in its territory.
