JURISDICTION OF CYBER CRIME

                                JURISDICTION OF CYBER CRIME

History of Cyber Crime

—  The first recorded cyber crime took place in the year 1820

—  In 1820, Joseph-Marie Jacquard, a textile manufacturer in France, produced the loom.

—  This device allowed the repetition of a series of steps in the weaving of special fabrics.

—  This resulted in a fear amongst Jacquard's employees that their traditional employment and livelihood were being threatened.

—  They committed acts of sabotage to discourage Jacquard from further use of the new technology. This is the first recorded cyber crime.

Types of Cyber Crime

—  The rate of cyber crime is increasing day by day along with rising development of science and technology.

—  There are several types of cyber crime that happen in today’s world.

—  Some of them are :

—  A. Hacking:

—  1. Personal computer is broken + sensitive information is stolen

—  2.Varity of software is used to get accessed in that target computer of that victim

—  3. Computer may be hacked or accessed from remote location

—  B. Identity Theft:

—  1.Fradulant Acquisition of personal private identifying information + for unlawful financial gain

—  Example: Stolen Credit Card (criminal + stole credit card + run huge bills and suffer card a large loss)

—  They might sell that identity to other criminal in the same fashion.

—  C. Cyber Stalking/Harassment:

—  Use of the internet, e-mail, or other electronic communication devices, to harass other person .

—  {eg: when fake ads are posted on the Internet, providing personal information (name, address, photos) of a victim and stating that the victim is seeking partners for sexual fantasies, such as rape.}

—  D.Theft:

—  (i.) Crime that happen when someone unlawfully downloads music, movies, games or software and violates copyright.

—  (ii.) Cover all crimes of illegal downloading

—  (iii.) Also cover plagiarism and crime against intellectual property

—  E. Spoofing and Phishing :

—  (i.) action of constructing a mimic (duplicate) site which seems like original one

—  (ii.) technique used to gain unauthorized access to computers + sending msg to target computer with an IP address indicating the msg coming from trusted host

—  (iii.) finally hacked email and password for commencing fraudulent acts.

Cyber Jurisdiction

—  The online world of computer network and the internet is termed as Cyber Space.

—   The word “cyber space” is credited to William Gibson who used it in his book, “Neuromance” written in 1984.

—  An environment for Cyber-crime is nothing but a criminal activities carried out by means of computers or the Internet

Jurisdiction: Concept & Importance

—  This used to define the proper court in which to bring a particular case

—  It refers to the inherent authority of a court to hear a case and to declare a judgment

—  The geographic area over which authority extends-legal authority-

—   the authority to hear and determine causes of action.

—  It refers to the origin of a court's authority This insures that one court is not over run with cases from different districts or jurisdictions.

Types of jurisdiction in India

—  Original jurisdiction-in which a court hears a case at the first instance

—  Appellate jurisdiction - where the court hears only an appeal from the trial court

—  In personam- a court has jurisdiction over the persons involved in the lawsuit and is empowered to deal with matters between them such as in a law suit on a debt or accident case.

—  In-rem- the court has jurisdiction over the particular thing the law suit involves such as a particular piece of land

International Law for Indian Sovereign

—  A body of rules established by custom or treaty and recognized by nations as binding in their relations with one another.

—  3 distinct International Legal disciplines

—  1. Public International Law

—  2. Private International Law

—  3. Supranational Law

Indian Legal Framework:

—  Jurisdiction under the Civil Procedure Code, 1908

—  Jurisdiction under the Code of Criminal Procedure

—  Jurisdiction under the Information Technology Act

—  Jurisdiction under International Law

—  Jurisdiction under Civil  Procedure Code 1908

Basis

—  Pecuniary or monetary basis - consisting of or relating to money.

—  Territorial jurisdiction or Area - wise - the sovereign jurisdiction that a state has over land within its boundary limits over its inland and territorial waters and to a reasonable extent over the air space above and subsoil below in such land and waters, and over all persons and things within those areas subject to its control

—  Jurisdiction under the Code of Criminal Procedure, 1973 (Cr.P.C Chapter 13; Section 177 to 189 explains regarding the jurisdiction of the criminal courts)

Criminal offences shall be inquired:-

—  Ordinarily inland tried by a Court within whose local jurisdiction it was committed

—  In case of severed local areas, where offence was committed or continues and thus tried by a Court within whose local jurisdiction of the offence was committed or the accused person is found.

—  If offence is committed by an Indian citizen outside India, person may be dealt with in such offence as if it had been committed at any place within India

—  If offence was committed by a person who is not a citizen but he committed outside India on any ship or aircraft, person may be dealt with in such offence as if it had been committed at any place within India

Jurisdiction under IT Act,2000

—  It provides legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communications

—  This Act shall apply to an offence or contravention committed outside India by any person [Section 75 & 2(2)]

—  Section 13 speaks that if the originator or the addressee has more than one place of business then principal place of business shall be the place of business.

—  In case where there does not have any place of business, then usual place of residence in relation to a body corporate, means the place where it is registered.

—  (Section 61) Civil Court has no jurisdiction in the matter of cyber world

—  “International Law” is the name of the body of customary and conventional rules which are considered legally binding by civilized states in their intercourse with each other

Principle of Universal Jurisdiction

—  -A legal principle allowing or requiring a state to bring criminal proceedings in respect of certain crimes irrespective of the location of the crime and the nationality of the perpetrator or the victim.

—  There is no formal legal basis for universal jurisdiction, but it represents a customary international norm

Conflict of Law

—  This phrase is used to signify that the laws of different countries, on the subject-matter to be decided, are in opposition to each other; or that certain laws of the same country are contradictory.

—  A court can apply the law of the forum (lex fori)– which is usually the result when the question of what law to apply is procedural, or the court can apply the law of the site of the transaction, or occurrence that gave rise to the litigation in the first place (lex loci)– this is usually the controlling law selected when the matter is substantive.

Treaty and Convention

—  A treaty comes into force as an attempt to end conflict or disagreement between a few countries whereas a convention is an attempt by many countries to discuss global issues and reach and agreement to be followed by signatories.

—  Convention is a process that begins with deliberations and ends in an agreement that is drafted and ratified by member countries. On the other hand, a treaty is signed straight away by the members.

Cybersell, Inc v Cybersell, Inc., 130 F.3D 414 9^th CIR 1997

—  Facts-

—  Cybersell, Inc., an Arizona corporation that advertises for commercial services over the Internet, claims that Cybersell, Inc., a Florida corporation that offers web page construction services over the Internet, infringed its federally registered mark and should be amenable to suit in Arizona because cyberspace is without borders and a web site which advertises a product or service is necessarily intended for use on a world wide basis.“

—  District Court Decision-

—  The motion of Cybersell (Florida) to dismiss the suit filed in federal court in Arizona for lack of personal jurisdiction was granted. Cybersell (Arizona) appealed.

—  Court of Appeals Decision Affirmed.

—  Applying the "minimum contacts" requirements, it would not comport with 'traditional notions of fair play and substantial justice' for Arizona to exercise personal jurisdiction over an allegedly infringing Florida web site advertiser who has no contacts with Arizona other than maintaining a home page that is accessible to Arizonans, and everyone else, over the Internet.

—  No court has ever held that an Internet advertisement alone is sufficient to subject the advertiser to jurisdiction in the plaintiff's home state."

—  Cybersell (Florida) did not contact anyone or make any sales in

United States v. Ivanov (US District Court of Connecticut 2001)

—  Fact of the case:

—  → Defendant Ivanov and a codefendant, John William Butenko, were convicted of conspiring to transmit to the Soviet Union information relating to the national defense of the United States.

—  → He was indicted for conspiracy, computer fraud, extortion, and possession of illegal access devices.

—  Claim of Defendant :

—  → Ivanov appealed to dismiss the case, claiming that the court lacked subject-matter jurisdiction

—  →he argue because he was physically located in Russia when the offenses were committed

—  Court Decision:

—  → The court denied Ivanov's motion, on the ground because the intended and actual detrimental effects of Ivanov's actions in Russia occurred within the United States

—  → and also because each of the statutes under which Ivanov was charged with a substantive offense was intended by Congress to apply extraterritorially.

—  →Therefore, was held guilty to several crimes, including computer intrusion and computer fraud.

—  → He was sentenced to 48 months in prison.

—  Tracing the actual legal jurisdiction for cyber crime CPC totally deal with civil matter within the state and hence cyber-crime is not able to come under its perview.

—  Code of Criminal Procedure expands its ambit on its citizen and any ship or aircraft which is registered in India.

—  It means Indian court has only jurisdiction in these three fields.

—  But again, jurisdiction of cyberspace is not clear.

—  International Law is quite successful in maintaining a peaceful and amicable relationship among the countries with the help of various mechanism and organizations.

—  But, it can be observed that International Law is insufficient to cover the primary jurisdiction in the matter of cyber crimes.

—  Conflict of law can be solved by Convention and treaties. But, India is not a signatory of the Convention of Cyber Crime

—  Information Technology Act 2000 tries to expand its ambit to extra territorial jurisdiction; still it is difficult for the courts to punish the defendant as they may be from a different country.

Theories of Jurisdiction

—  Subjective territoriality

—  Under the subjective aspect of territorial jurisdiction a sovereign is recognized as having the power to adopt criminal laws that apply to crimes that are physically committed within his territorial borders.

—  As other states make inadequate adjudication hence the state extend the subjective territorial principle and expand their Net to bring the culprit within their domestic laws.

—  The said principle extends jurisdiction to activities which commence within a State’s geographical territory but completed or consummated in other territories.

—  So, for example, the United Kingdom can adopt a statute that makes it a crime for anyone to commit an act of murder within its borders.

—  Objective territoriality –

—  Under the objective aspect of territorial jurisdiction a sovereign is recognized as having the power to adopt a criminal law that applies to crimes that take effect within its borders even if the perpetrator performs the act outside of its borders.

—  In other words, Under this principle jurisdiction of the State is extended to those acts that are commenced in another state’s territory but either (a) Consummated or completed in its own land or (b) Such activities produce harmful effects in the territory of the party extending jurisdiction .

—  The consummation of activity factor is complement to the subjective territorial principle.

—  Principles of Jurisdiction

—  Principle of Nationality: It applies where the alleged offender is a national of the State, the laws of which have been violated by his acts.

—  In India, according to IPC, an Indian national is liable to prosecution in India for an offence committed in a foreign country which is punishable under Indian law.

—  (Sec 3) 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]

—  Principle of passive personality-

—  The passive personality principle gives jurisdiction to a State over the activities of foreigners which harms the nationals of that foreign state.

—  This test is detested by customary international law too and in the Lotus case the Turkey Statute justified the jurisdiction.

—  Principle of Universality.

—  Universal Jurisdiction:

—   Another form of assuming jurisdiction is known as universal jurisdiction or the universal interest jurisdiction.

—  As the name points out, this jurisdiction is assumed by any State to prosecute an offender for acts which are known universally by International law to be a heinous crime, i.e. hijacking, child pornography, cyber terrorism etc.

—  A cyber criminal can be prosecuted by any country based on universal

—  Protective Principle-

—  As the term suggests this principle comes to play where security of any state endangered by the act of any foreign national.

—  According to the principle a state has jurisdiction in respect of “certain conduct outside its territory by persons that directed against the security of the state or against a limited class of other state interests.

—  Tests to determine jurisdictions:

—  1. Minimum Contacts theory

—  The Minimum Contact theory comes into picture when either or both of the parties seem to be from outside the Court's territorial jurisdiction.

—  It is used as a method to establish the Court's jurisdiction over the parties to a case by determining their quality and intensity of their contact i.e. services or transactions with the Forum State.

—  Minimum contact rule establishes that so long as a corporation had a degree of contact within the state bringing suit, they are subject to the laws of the state and can be sued by and within the forum state in court.

—  Examples of minimum contacts include conducting business within the state, incorporating in the state, and visiting the state.

—  The theory was laid down in a landmark case i.e. International Shoe Co. v. Washington, 326 U.S. 310 (1945).

—  There was a landmark decision of the Supreme Court of the United States in which the Court held that a party, particularly a corporation, may be subject to the jurisdiction of a state court if it has "minimum contacts" with that state.

—  The ruling has important consequences for corporations involved in interstate commerce.

—  It was held: Suit cannot be brought against an individual unless they have minimum contacts with the forum state.

—  Following International Shoe, courts have generally applied a three- part test in evaluating minimum contacts sufficient for jurisdiction:

—  (1) The non-resident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections.

—  (2) the claim must be one which arises out of or results from the defendant's forum-related activities; and

—  (3) exercise of jurisdiction must be reasonable.

—  Effects test or Calder Effect Test

—  Calder  v. Jones, 465 U.S. 783 (1984)

—  United States Supreme Court held that a court within a state could assert personal jurisdiction over the author and editor of a national magazine which published an allegedly libellous article about a resident of that state, and where the magazine had wide circulation in that state.

—  Held :A state's courts could assert personal jurisdiction over the author or editor of a libellous article, where the author or editor knew that the article would be widely circulated in the state where the subject of the article would be injured by the libellous assertion.

—  Held that California courts had jurisdiction over the defendant.

—  Conditions to be satisfied

—  (a) an intentional action,

—  (b) that was expressly aimed at the forum state,

—  (c) with knowledge that the brunt of the injury would be felt in the forum state

—  If a court finds that a defendant's actions meets the standard of purposeful direction, then personal jurisdiction may be asserted based on Internet activities which do not meet the requisite level of interactivity or minimum contacts needed for other tests of personal jurisdiction in Internet cases

—  Personal Jurisdiction Theory

—  All the person living within a defined area fall under the jurisdiction of court concerned.

—  But the dispute takes place when the party or parties live out of its jurisdictional territory or even out of the said political entity or country.

—  This jurisdiction receives a definite setback in the internet arena as in it, almost in every country there are a number of cases, civil or criminal in which one party or the accused is a resident of another country

—  Sliding scale test

—  Zippo manufacturing Co. V. Zippo Dot Com Inc

—  The "sliding scale" or "Zippo" Test has been generally accepted as the standard in Federal Courts in deciding personal jurisdiction in Internet cases. Such cases are now primarily decided based on a determination of the website's "interactivity".

—  Courts have held that the greater the commercial nature and level of interactivity associated with the website, the more likely it is that the website operator has "purposefully availed itself" of the forum state's jurisdiction.

—  Choice of law theory

—  There is a choice of laws option in case of conflict of law situation.

—  There are in the physical world a number of approaches which govern the transnational disputes ;

—  For example the “choice of law methodologies to mitigate the “ spill over effects” , the rule of international law, etc.

—  Country-of -origin or Country of destination test

—  There are divergent opinions regarding the rules country- of- destination applicable to online commercial activity as the business house is required to answer in a law court a few 100 miles away for non compliance with the law of that country.

—  Then it will become not only impractical for the entrepreneur to run business in this way but it will also have to be on an extra charge to face a litigation outside and away from their own jurisdiction.

—  Forum Selection Theory

—  If one or more courts have the jurisdiction to try any suit, it is open for the parties to choose any one of the two competent courts to decide their disputes.

—  In case parties under their own agreement expressly agree that their dispute shall be tried by only one of them then the parties can only file the suit in that court alone to which they have so agreed.

—  Modi Entertainment Network v. W.S.G. Cricket Pvt. Ltd.,

—  Internet Jurisdiction “Lex loci delicti” rule

—  Traditional theories of jurisdiction are inapplicable to the Internet due to the following reasons:

—  1.material posted on the internet has worldwide audience;

—  2.It is easy to move website from one territory to another;

—  3 .A website can be hosted on one area, but directed at users in another geographic location;

—  4.Parts of a website may be hosted in one area, while other parts of the websites are hosted in another location; and

—  5.It is not always possible to determine where a website or user is located.

—  Main areas of conflict

—  Inter- sovereign conflict - Extension of laws of one State to another has been an unimagible concept unless it is backed by some treaty between the two states. For the Internet environment, this is the first requirement as the borderless cyberspace has no established norms.

—  Yahoo! Inc. V. Ligue Contre Racisme et L’Antisemitisme , United States v. Thomas, etc.

—  Over inclusiveness-

—  Under inclusiveness-

—  Indian Context of Jurisdiction (Provisions of IT Act)

—  Sec 1 specifies the extent of the application of this act. It states that: (2) It shall extend to the whole of India, save as otherwise provided in this Act, it applies also to any offence or contravention there-under committed outside India by any person.

—   Sec 75 deals with the provisions of the act to apply for offences or contravention committed outside India. It states that: subject to the provision of sub section (2), the provision of this act shall also apply to any offence or contravention committed outside India by any person irrespective of his nationality.

—  For the purpose of sub section (1), this act shall apply to an offence or contravention committed outside India by any person if the act or conduct constituting the offence or contravention involves a computer, computer system or computer network located in India.

—  Sec 46 of the Act renders power to adjudicate in case of contravention of any provision of this act and for the purpose adjudging it provides for the appointment of adjudicating officer who is vested with the powers of civil courts which are conferred on the Cyber Appellate Tribunal Sec (48) of the act provides for the Establishment of Cyber Appellate Tribunal (1) The Central Government shall, by notification, establish one or more appellate tribunals to be known as the Cyber Regulations Appellate Tribunal. Sec.( 61) Civil Court not to have Jurisdiction No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an adjudicating officer or the Cyber Appellate Tribunal is empowered to determine under this Act. No court shall grant injunction in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

—  Sec. (62) Appeal to High Court: Any person aggrieved by any decision or order of Cyber Appellate Tribunal may file an appeal to the High Court within 60 days from the date of communication of such decision or order.

—  An appeal may be on any question of fact or law arising out of such order.

—  The High Court may allow it to be filed within a further period of 60 days, if it is satisfied that sufficient cause prevented him from filing the appeal within the prescribed period

—  Jurisdiction has been mentioned in Sections 46, 48, 57 and 61 in the context of adjudication process and the appellate procedure connected with and again in Section 80 and as part of the police officers’ powers to enter, search a public place for a cyber crime etc.

—  In the context of electronic record, Section 13 (3) and (4) discuss the place of dispatch and receipt of electronic record which may be taken as jurisprudence issues.

—  India TV Independent News Service Pvt. Limited v. India Broadcast Live Llc & Ors.15

—  Banyan Tree Holding (P) Limited v. A. Murali Krishna Reddy, 2009 https://indiankanoon.org/doc/151685239/

—  Super Cassettes Industries ltd. v. Myspace Inc. & another

—  The said commission of the acts or the part of the overt acts constitutes the part of cause of action within the meaning of Section 20 (c) of the Code of Civil Procedure and therefore the court have jurisdiction even on the basis of the cause of action clause of CPC.

other relevant legislation

Contract Act

—  Hakam Singh v. Gammo (India) Ltd. laid down two important conditions for the application of autonomy to decide the jurisdiction of the court.

—  1. first, the Court selected by the common consent should have inherent jurisdiction,

—  2. second, more than one court should have the jurisdiction so that the choice of forum agreement can be exercised. However in case where the parties have not selected or applied their autonomy regarding the jurisdiction of the court then jurisdiction can be fixed on the basis “cause of action”.

—  The” cause of action” arises in the following places:

—  1. The place of formation of contract i.e., where the contract has been entered;

—  2. The place of performance i.e., where the contract is performed or is required to be performed as per the terms of contract;

—  3.The place where, the consideration is made

Code of Civil Procedure, 1908

—  section 15 to 20 of code of civil procedure (1908), which talks about the place of suing or the subject matter jurisdiction and section 20 of this code specifically speaks about any other category of suit which is not covered in section 15 to 19 of the code.

—  Section 20 serves important ingredients for the purpose of institution of other suit in a court within the local limits of whose jurisdiction' the defendant or each of the defendants resides, or carries on business, or personally works for gain at the time of the commencement of suit

—  However, this section doesn't seem to be fit in virtual world.

—  Casio India Co. Ltd. v. Ashita Tele Systems Pvt. Ltd.

—  Satya v. Teja Singh,

Criminal Procedure Code, 1973

—  Section 1(2) of the IT Act refers to the concept of extraterritorial application of the Act by stating that it is extended to whole of India and applies to any offence or contravention committed outside India by any person. The interpretation of the above provision suggests that the nationality of the offender is not an issue for the application of IT Act.

—  Section 75 further clarifies that the jurisdiction extends to any offence or contravention committed outside India by any person irrespective of his nationality provided the act or conduct constitute offence or contravention involving a computer, computer system or computer network located in India. Therefore, the effect principle of jurisdiction has been accepted for the jurisdiction of court.

—  Criminal Procedure Code under Section 177 to 189 deals with the jurisdiction of Court. Section 177 lays down that the offence will be tried down by the Court within whose local jurisdiction the offence was committed.

—  If the offence is a continuing one or committed in parts in different territory, as per Section 178 the Court having the jurisdiction over any of such local area can entertain the trail.

—  Section 179 lays down the principle that the jurisdiction of Court where offence is committed or consequence is ensued.

—  Following it Section 182 requires that any offence of cheating by means of telecommunication be tried into any court whose local jurisdiction such message were sent or received.

—  In case of the offender commits the crime beyond local jurisdiction but resides within the local jurisdiction, then within the jurisdiction of local court where he resides may inquire into the offence as if it is committed in the local area.

—  Section 188 incorporate the nationality principle of jurisdiction as it provides that if a citizen of India outside the country commits the offence, the same is subject to the jurisdiction of court in India.

—   However the court can apply the jurisdiction in the above case only if the offender is brought within the territory of the State.

Criminal Procedure Code under Section 177 to 189 deals with the jurisdiction of Court.

—  Section 177 lays down that the offence will be tried down by the Court within whose local jurisdiction the offence was committed.

—  If the offence is a continuing one or committed in parts in different territory, as per Section 178 the Court having the jurisdiction over any of such local area can entertain the trail.

—  Section 179 lays down the principle that the jurisdiction of Court where offence is committed or consequence is ensued.

—  Following it Section 182 requires that any offence of cheating by means of telecommunication be tried into any court whose local jurisdiction such message were sent or received. In case of the offender commits the crime beyond local jurisdiction but resides within the local jurisdiction, then within the jurisdiction of local court where he resides may inquire into the offence as if it is committed in the local area.

—  Section 188 incorporate the nationality principle of jurisdiction as it provides that if a citizen of India outside the country commits the offence, the same is subject to the jurisdiction of court in India. However the court can apply the jurisdiction in the above case only if the offender is brought within the territory of the State.

Jurisdiction under IPC, 1860

—  Sec. 3. 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].

—  Sec. 4 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;]

—  3) any person in any place without and beyond India committing offence targeting a computer resource located in India .

—  Relevant Cases

—  SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra

—  SIL Import v. Exim Aides Silk Importers

—  Impresario Entertainment & Hospitality Pvt. Ltd. vs S&D Hospitality

—  Banyan Tree Holding (P) Limited v. A. Murali Reddy and Anr

—  International Position Of Internet Jurisdiction

—  Stand of The United States of America

—  The USA recognises two different forms of personal jurisdiction known as

—  “General Jurisdiction”

—  “Specific Jurisdiction”

—  the US Constitution requires minimum contacts between a potential defendant and the forum State. The two constitutional tests regarding asserting jurisdiction over a foreign defendant were laid down in International Shoe Co. V. Washington.

—  Thus in the US, the courts have taken electronic transmission into or other electronic connections with the forum jurisdiction as the basis of jurisdiction

—  Yahoo! Inc.v. La Ligue Contre Le Racisme ,

—  La Forest, J., in Libman v. The Queen,

—  Burger King Corp. v

—  Ballard v. Savage

—  Jurisdiction on the Basis of Online Contract

—  Bremen v. Zapata Off-Shore Co.,

—  Forum Selection Clauses: Click-trap Contracts

—  Steven J Caspi et al v. The Microsoft Network, L.L.C., et al.,

—  Jurisdiction Based on Location of a Web Server

—  Jewish Defence Organization, Inc. v. Superior Court

—  European Approach to Personal Jurisdiction

—  Brussels Regulation

—  Applicability of Brussels Regulation in Online Environment

—  India and international convention over cyber jurisdiction:

Convention on Cyber crime, 2001

—  Article 22 The Convention on Cyber Crime, 2001 allows the country to have jurisdiction if the cyber crime is committed: In its territory; On board a ship flying the flag of the country; On board an aircraft registered under the laws of the country By one of the countries nationals, if the offence is punishable under criminal law where it was committed or if the offence is committed outside the territorial jurisdiction of any State

—  United Nations Convention against Transnational Organized Crime (UNTOC):

—  This treaty was adopted by resolution of the UN General Assembly in November 2000. India being a signatory to this joined in 2002. UNTOC is also known as the Palermo Convention, under this the state parties are obliged to enact domestic criminal offences that target organised criminal groups and to adopt new frameworks for extradition, mutual legal assistance, and law enforcement cooperation. Although the treaty does not explicitly address cyber-crime, its provisions are highly relevant. In pursuant to this treaty Indian Parliament enacted the Information Technology Act 2000.

Rome Convention

—  To resolve cross-border consumer contractual disputes, the EU Member States became signatories to the Rome Convention, 1980. It decides which country law would applies in contractual disputes. The Convention gave freedom of choice to the contracting parties, as it states that “a contract shall be governed by the law chosen by the parties. The choice must be express or demonstrated with reasonably certainty.” It further states that “the mandatory rules of the consumer’s country of habitual residence will always apply whatever choice of law is made.”

Mutual legal assistance treaty

—  A mutual legal assistance treaty (MLAT) is an agreement between two or more countries for the purpose of gathering and exchanging information in an effort to enforce public or criminal laws.

—  A mutual legal assistance request is commonly used to formally interrogate a suspect in a criminal case, when the suspect resides in a foreign country.

—  Examples of multilateral MLATs

—  Convention on Mutual Administrative Assistance in Tax Matters

—  European Convention on Information on Foreign Law

—  European Convention on Mutual Assistance in Criminal Matters

—  European Convention on the International Validity of Criminal Judgments

—  Inter-American Convention on Mutual Assistance in Criminal Matters^[2]

—  United Nations Convention against Transnational Organized Crime

—  Mutual Legal Assistance Treaties (MLATs):

—  It is an agreement between two or more countries for the purpose of gathering and exchanging information in an effort to enforce public or criminal laws.

—  When evidence or other forms of legal assistance such as witness statements or the service of documents are needed from a foreign country, the two countries may attempt to cooperate informally through their respective police agencies or alternatively they may resort to requests for Mutual Legal Assistance.

—  MLATs can be bilateral (country to country), multilateral, regional (any regional grouping example ASEAN) and country to regional (India with all the countries of European Union).

—  Assistance may be denied by either country (according to agreement details) for political or security reasons, or if the criminal offence in question is not equally punishable in both countries.

—  This assistance may take the form of:

—  examining and identifying people,

—  places and things,

—  custodial transfers and

—  providing assistance with the immobilisation of the instruments of criminal activity.

Central Authority in India for Mutual Legal Assistance Requests:

—  As per the Allocation of Business Rules of the Government of India, the Ministry of Home Affairs (MHA) is the nodal Ministry and the Central authority for seeking and providing mutual legal assistance in criminal law matters.

—  MHA receives all such requests, examines them and takes appropriate action. Internal Security-II Division handles this subject in the Ministry of Home Affairs.

—  Similarly, cases pertaining to civil and commercial matters are required to be taken up with the Ministry of Law & Justice, which finalizes and notifies treaties and arrangements with other countries as per the relevant statutory provisions in the Code of Civil Procedure.

—  The Ministry of External Affairs may be involved in this process when such requests are routed through diplomatic channels by these Ministries

Procedure for serving Summons issued by an Indian Court on a person living abroad:

—  Section 105 of the Criminal Procedure Code (CrPC) speaks of reciprocal arrangements to be made by Central Government with the Foreign Governments with regard to the service of summons/warrants/judicial processes.

—  Accordingly, the Ministry of Home Affairs (MHA) has entered into Mutual Legal Assistance Treaties/Agreements on Criminal Matters with 39 countries which provide for serving of documents.