AN ANALYTICAL STUDY ON CYBERSPACE AND IT’S JURISDICTION IN INDIA: CHANDINI RAJKISHORE & RAGAVEE. U

AN ANALYTICAL STUDY ON  CYBERSPACE AND IT’S JURISDICTION IN INDIA

Author: Chandini Rajkishore[1]

Co-Author: Ragavee. U[2]

ISSN: 2582-3655

ABSTRACT

Cybercrime has jurisdiction over extraterritorial aspects. If the jurisdiction is in relation to state then it is terrestrial area within the power of the administrator can be followed. The main power of the court is to examine and determine the acts that is enacted, to interpret the laws, to follow the enacted laws and the courts can declare the laws unconstitutional if the laws are violating the Indian Constitution. The cyberspace has no physical boundaries. There are 5 main types of jurisdiction. Pecuniary jurisdiction is the first type of jurisdiction. The meaning of pecuniary is that it is “related to money”. The territorial jurisdiction is based on the geographical limits of a court. The subject matter can be defined as the power in a court to hear and try cases pertaining to a particular type and subject matter. It refers to the authority of the court to take cognizance of cases that can be adjudicated in the first instance itself. Both the High Court and the Supreme Court have the power to hear appeal cases. This research follows empirical type of research and the sampling method used in this survey is random sampling method. The current paper is based on random sampling method and the sample size is limited to 1652 and this analysis is done through SPSS tool for acquiring  better and accurate results. This paper also includes various secondary sources to get through the current issue, but the results will be focused mainly on the primary data. The null hypothesis is proved as the pearson chi square value is less than 0.05.

Keyword: jurisdiction, cyberspace, court, territorial, cognizance

INTRODUCTION

Cybercrime has jurisdiction over extraterritorial aspects. If the jurisdiction is in relation to state then it is the terrestrial area within the power of the administrator that can be followed(Kohl, n.d.). The jurisdiction relating to the court is the subject matter where a court has the power to take cognizance and to try a case. The authority of a court has the power to hear and resolve a dispute relating to an individual, property and subject matter. The main power of the court is to examine and determine the acts that is enacted, to interpret the laws, to follow the enacted laws and the courts can declare the laws unconstitutional if the laws are violating the Indian Constitution(Kittichaisaree 2017). The cyberspace has no physical boundaries. The principle of jurisdiction followed by a state must not exceed the limits which international laws place upon its jurisdiction. The principle of jurisdiction is promoted in the Indian Constitution of a state and its jurisdictional sovereignty. There are 5 main types of jurisdiction.

Pecuniary jurisdiction is the first type of jurisdiction. The meaning of pecuniary is that it is “related to money”. This type of jurisdiction addresses the question of whether the court is competent to try the case of the monetary value of the suit in question. The purpose of this type of jurisdiction is to prevent the burden of cases(Freeman 1999). The limit of the monetary value differs from one court to another. Generally, the court takes the valuation of the plaintiff. For example, “A” wants to sue “B” for breach of contract to recover Rs. 10,000 in Chennai. The Chennai High Court has original jurisdiction and the Small causes court with the jurisdiction up to Rs. 50000. So, a suit to recover Rs. 10,000 should ideally be instituted by A in Small causes court. In Karan Singh vs Chaman Paswan, the plaintiff filed a suit at the subordinate court at Rs. 2950 but the court dismissed the case. The plaintiff went for an appeal in the District Court and the District Court also dismissed the case. Then the plaintiff went for a second appeal and it was accepted by the High Court. The second type of jurisdiction is territorial jurisdiction. This jurisdiction is based on the geographical limits of a court. The territorial limit cannot supersede (Gladstone 2003). The territorial jurisdiction means that it’s the extent of the area which the court extent to. Section 16 of the Civil Procedure code defines the territorial jurisdiction on the basis of the location of the immovable property. If the immovable property is situated within the jurisdiction of more than one court then the suit can be filed at the court where any portion of the property is located(Terentyeva 2019). For example, If Shivaay, a resident of Nagpur beats Ron in Maharashtra, Ron may file a suit in Nagpur or  Maharashtra.

The third type of jurisdiction is Subject Matter jurisdiction. The subject matter can be defined as the power in a court to hear and try cases pertaining to a particular type and subject matter. The subject matter means that a particular type of cases(Dunne, n.d.). For Example the matters relating to the consumer cases is heard only in the consumer forums and then the Consumer Protection Act will be the law that is applicable for the subject matter jurisdiction. Here the subject matter is the consumer cases. The fourth type of jurisdiction is the original jurisdiction. The court has their powers to take up a case in a jurisdiction. All the courts have the power of original jurisdiction(Fatima 2017). It refers to the authority of the court to take cognizance of cases that can be adjudicated in the first instance itself(Koops and Brenner 2006). For Example, the High Court has original jurisdiction in the matters of matrimonial, probate, company matters and testamentary. The fifth type of jurisdiction is the Appellate jurisdiction. This means that the court has the authority to review or rehearing a case where anyone party is not satisfied with the judgment of the lower court. Both the High Court and the Supreme Court have the power to hear appeal cases. The aim of this paper is to know whether cyberspace has jurisdictional power in India.

OBJECTIVES

  • To find the jurisdiction of cyberspace.
  • To know if the cyberspace has any physical boundaries.
  • To study the types of jurisdiction in cyberspace

REVIEW OF LITERATURE

(Chris Reed)The result of the nature of cyberspace in many cases is that the parties to an Internet transaction are faced with overlapping and often contradictory claims that national law applies to some part of their activities(Hert and de Hert 2006). (Suri and Chhabra) The developing law of jurisdiction must address whether a particular event in Cyberspace is controlled by the laws of the state or country where the Website is located or by the laws of the state or country where the Internet service provider is located, or perhaps all of these laws. (Patricia) The control over physical space, people and things located in that space is a defining attribute of sovereignty and statehood(Zekos 2005). (Dalal) Elaborately examines the jurisdictional issue in Cybercrimes and calls for an effective international regime to tackle the recently evolved cyber menace. (S. Muralidhar), the jurisdictional issues in cyberspace arising out due to the violation of IPR and proposed a possible solution to the issue. (Lynne Roberts) The problem in investigating Cybercrime and difficulties in determining the jurisdiction this paper provides an overview of the current state of knowledge on cyberstalking and ends with an examination of difficulties in investigating and prosecuting cyberstalker. (Danielle Ireland-Piper) The distinction between perspective, adjudicative and enforcement Jurisdiction, sets out some of the historical development of Extraterritorial jurisdiction and introduces the principle of extraterritorial jurisdiction(“Jurisdiction in Cyberspace” 1997). (Ter kah Leug) No doubt in a fast-evolving electronic environment, No legislation can ever keep pace with technology, nevertheless, we are able to categorize information systems, known bugs and inefficient legislation, then with all in all consideration of antecedent vulnerabilities, we will find suitable updates to enact and this can be done by cyberspace law specialist. (Faisal Nabi) Deducted secure software for server-side security and privacy afterward mentioned encryption but whether we should take advantage of the company’s cryptography algorithm or we would rather prefer an application that is able to define some private encryption keys. (Albin Zuccato) The four reducing difficulties factor and process in his holistic security framework however, his policy planning has not included scalability(Davidson, n.d.). (Giampaolo bella) A great balance between trust and anonymity is one of the most efficient paradigms with regard to customer’s privacy and anonymity(Trachtman, n.d.). (Eliza Mik) has considered mistaken identity as a different scale in an e-commerce transaction. In fact, to address identity fraud through remote channels in sensible circumstances we are able to put forward some technologies such as figure prints, eye print, facial detection(Chander 2012). (Dan Svantesson) Whereas demonstrating lots of descriptions besides the transaction process may fatigue e-consumers or any other clients(Kumar, n.d.). (Bharat saraf) In Brussels, I regulation, e-commerce including third state defendants, is out of ambit for jurisdiction(Sharma, n.d.). (Roger Clarke) Jurisdiction to adjudicate means the tribunals of a given country may resolve the dispute with respect to a person or thing where the country has jurisdiction to prescribe the law that is sought to be enforced. (Ashraf U.sarah kazi) Physical presence in a state is always a basis for personal jurisdiction(Hildebrandt 2013).

JUDICIAL INTERVENTION

CASE LAWS

In Lucasfilm v Ainsworth the Court of appeal control a people courts couldn’t entertain AN action of infringement of remote copyright. The Court careful regarding jurisdiction that Extra-territorial jurisdiction can involve restraint on actions in another country, that a remote choose ought to avoid. If national courts of various countries all assume jurisdiction there’s an excessive amount of area for forum-shopping.

In Skype Technologies v. Joltid Ltd. there existed a contract between the parties. The contract between Skype Technologies associate degreed Jolie contained an exclusive jurisdiction clause within the following terms: “Any claim arising beneath or with reference to the Agreement shall be ruled by [English law] and therefore the parties taste the exclusive agreement of English courts.”

In Soccer Data Co Ltd & Others v. Sportradar GmbH & Anr the Court had to contemplate a jurisdiction application of defendants with reference to web servers. The Judge “came to the conclusion that the act of creating out there to the general public by online transmission is committed and committed solely wherever the transmission takes place. it’s true that the inserting of knowledge on a server in one state will build the info out there to the general public of another state however that doesn’t mean that the party World Health Organization has created the info out there has committed the act of creating out there by transmission within the State of reception. I contemplate that the higher construction of the provisions is that the act solely happens within the state of transmission.” it absolutely was a command that the Court has jurisdiction over the claim of authorizing and alternative matters.

In Shevill v. Press Alliance, in a world defamation case, France, in regard to the complete circulation of the publication, or in anyplace wherever the allegedly calumniatory publication is distributed, together with European nation however alone in regard to the harm to name caused by the distribution of the publication therein jurisdiction. The Court gave associate autonomous interpretation of the ‘place of the event giving rise to the damage’ for the aim of a libel by a news story distributed in many getting States. the eu Court of Justice command that associate English lodging was ready to sue a French domiciled newspaper either within the place wherever the suspect is established.

In Crosstown Music Co v Rive Droite Music, the Court of Appeal had to contemplate whether or not the difficulty of possession of foreign copyrights was justiciable within the circumstances of that case. The court mentioned that it did have jurisdiction stating, “The gift case turned on the development and application of a term in an exceedingly contract that restrained copyright throughout the universe and that had a categorical English law clause and exclusive English court’s jurisdiction clause. As between the parties and their successors in title, that was binding on the question of the acceptable jurisdiction and therefore the applicable law.”

METHODOLOGY

This research follows an empirical type of research and the sampling method used in this survey is a random sampling method. In this study, both primary and secondary data is used. The secondary data used are government documents, unpublished thesis, websites, journals, etc. The primary data was collected from the respondents using a simple random sampling method with a structured questionnaire.  Independent variables such as age, gender, educational qualification, occupation, marital status, monthly family income, monthly expenditure, etc were also collected. The dependent variables are they are aware of the concept of cyberspace and that cyberspace jurisdiction has no physical boundaries. The current paper is based on a random sampling method and the sample size is limited to 1552 and this analysis is done through the SPSS tool for acquiring better and accurate results. This paper also includes various secondary sources to get through the current issue, but the results will be focused mainly on the primary data.

RESULTS AND ANALYSIS

Frequency Table

Age
  Frequency Percent Valid Percent Cumulative Percent
Valid 18-30 years 852 51.6 54.9 54.9
30-50 years 442 26.8 28.5 83.4
Above 50 years 258 15.6 16.6 100.0
Total 1552 93.9 100.0  
Total 1652 100.0    

Age * Are you aware about concept of cyberspace?

Crosstab
Count
  9. Are you aware of the concept of cyberspace Total
Yes No Maybe
Age 18-30 years 545 152 155 852
30-50 years 124 205 113 442
Above 50 years 72 147 39 258
Total 741 504 307 1552

The respondents are from the age group from 18-30 years to Above 50 years. The respondents of 18-30 years, 545 said yes that they are aware of about the concept of cyberspace and 152 said no that they are not aware about the concept of cyberspace. The respondents of 30 to 50 years, 124 said yes that they are aware of about the concept of cyberspace and 205 said no that they are not aware about the concept of cyberspace. The respondents of above 50 years, 72 said yes that they are aware of about the concept of cyberspace and 147 said no that they are not aware about the concept of cyberspace.

Chi-Square Tests
  Value df Asymp. Sig. (2-sided)
Pearson Chi-Square 245.724a 4 .000
Likelihood Ratio 250.004 4 .000
Linear-by-Linear Association 69.103 1 .000
N of Valid Cases 1552    
a. 0 cells (0.0%) have expected count less than 5. The minimum expected count is 51.03.

HYPOTHESIS

H0:

There is no significant change in the jurisdiction of cyberspace. 

Ha:

There is a significant change in the jurisdiction of cyberspace. 

The Pearson Chi square value is 0.000 which is less than 0.05. The null hypothesis is proved. The null hypothesis is there is no significant change in the jurisdiction of cyberspace.  

Age * The cyberspace jurisdiction has no physical boundaries

Crosstab
Count
  10. The cyberspace jurisdiction has no physical boundaries Total
Strongly Agree Agree Neutral Disagree Strongly Disagree
Age 18-30 years 245 304 183 8 112 852
30-50 years 99 141 141 14 47 442
Above 50 years 8 41 104 26 79 258
Total 352 486 428 48 238 1552

The respondents are from the age group from 18-30 years to Above 50 years. The respondents of 18-30 years, 245 strongly agreed that cyberspace jurisdiction has no physical boundaries, 304 agreed that cyberspace jurisdiction has no physical boundaries, 183 are neutral that the Cyberspace jurisdiction has no physical boundaries 8 disagreed that cyberspace jurisdiction has no physical boundaries and 112 strongly disagreed that cyberspace jurisdiction has no physical boundaries. The respondents of 30 to 50 years, 99 strongly agreed that cyberspace jurisdiction has no physical boundaries, 141 agreed that cyberspace jurisdiction has no physical boundaries, 141 are neutral that the Cyberspace jurisdiction has no physical boundaries 14 disagreed that cyberspace jurisdiction has no physical boundaries and 47 strongly disagreed that cyberspace jurisdiction has no physical boundaries. The respondents of above 50 years, 8  strongly agreed that cyberspace jurisdiction has no physical boundaries, 41 agreed that cyberspace jurisdiction has no physical boundaries, 104 are neutral that the Cyberspace jurisdiction has no physical boundaries 26 disagreed that cyberspace jurisdiction has no physical boundaries and 79 strongly disagreed that cyberspace jurisdiction has no physical boundaries.

Chi-Square Tests
  Value df Asymp. Sig. (2-sided)
Pearson Chi-Square 213.804a 8 .000
Likelihood Ratio 222.858 8 .000
Linear-by-Linear Association 126.958 1 .000
N of Valid Cases 1552    
a. 0 cells (0.0%) have expected count less than 5. The minimum expected count is 7.98.

H0:

There is no significant change in the jurisdiction of cyberspace. 

Ha:

There is a significant change in the jurisdiction of cyberspace. 

The Pearson Chi square value is 0.000 which is less than 0.05. The null hypothesis is proved. The null hypothesis is there is no significant change in the jurisdiction of cyberspace.  

DISCUSSION

The respondents are from the age group from 18-30 years to Above 50 years. The respondents of 18-30 years, 245 strongly agreed that cyberspace jurisdiction has no physical boundaries, 304 agreed that cyberspace jurisdiction has no physical boundaries, 183 are neutral that the Cyberspace jurisdiction has no physical boundaries 8 disagreed that cyberspace jurisdiction has no physical boundaries and 112 strongly disagreed that cyberspace jurisdiction has no physical boundaries. The respondents of 30 to 50 years, 99 strongly agreed that cyberspace jurisdiction has no physical boundaries, 141 agreed that cyberspace jurisdiction has no physical boundaries, 141 are neutral that the Cyberspace jurisdiction has no physical boundaries 14 disagreed that cyberspace jurisdiction has no physical boundaries and 47 strongly disagreed that cyberspace jurisdiction has no physical boundaries. The respondents of above 50 years, 8  strongly agreed that cyberspace jurisdiction has no physical boundaries, 41 agreed that cyberspace jurisdiction has no physical boundaries, 104 are neutral that the Cyberspace jurisdiction has no physical boundaries 26 disagreed that cyberspace jurisdiction has no physical boundaries and 79 strongly disagreed that cyberspace jurisdiction has no physical boundaries.

RECOMMENDATIONS

The cyberspace jurisdiction differs from the category of the cases. The cyberspace jurisdiction has no physical boundaries. The cases filed under cyberspace will be heard according to the type of the case. There are 5 types of the jurisdiction they are, pecuniary jurisdiction, territorial jurisdiction, subject matter jurisdiction, original jurisdiction, and appellate jurisdiction.

CONCLUSION

The null hypothesis is proved. The null hypothesis is that there is no significant change in the jurisdiction of cyberspace.  Knowledge may be a public smart therein it cannot and will not be the non-public domain of anybody creator. The web is a perfect forum for the dissemination of information because of its pervasiveness(Capps et al. 2003). Alternative web governance mechanisms ought to be explored that may fulfill this objective and still function viable regulative models(Citron 2014). Any resolution projected ought to make sure that knowledge dissemination isn’t restricted whereas additionally considering informatics infringement as a true threat to creativity the answer ought to bridge these 2 concerns(Zekoll 2012). It is quite evident that web governance is not a straightforward matter. the web, specifically, is a highly interactive atmosphere with ordered innovation. tries to impose further intellectual property protection or to expand existing protection may well be prejudicial as a result of they fail to contemplate the worth of inventive imitation. The internet has created new issues for copyright homeowners, World Health Organization see their works distributed and copied throughout this immeasurable network(Berman 2017).

REFERENCES

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[1] Student,3rd Year,131702009,Saveetha School of Law,Saveetha Institute of Medical Sciences,Saveetha University 

[2] Assistant Professor,Saveetha School of Law,Saveetha Institute of Medical Sciences,Saveetha University

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