A Problem of Jurisdiction under the Cyber Laws: A Bird’s Eye

A Problem of Jurisdiction under the Cyber Laws: A Bird’s Eye View

ATIN KUMAR DAS, LL.M (II) SEMESTER, NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL.

Introduction

 The jurisdiction is not define in the cyber laws or The information Technology but it is defined in the code of civil Procedure 1908.The cyberspace means the growing technology i.e. communication by the means of websites or through telecommunication. The cyberspace is result of development in the era or field of technology. Jurisdiction means the place of suing or where the parties are resides. Jurisdiction can be said the territory of the courts on that basis the court can perform its duty. Section 15 to 20 of the Civil Procedure Code 1908 provides the place off suing or the subject matter of dispute. But in the recent we finds that now the place of plaintiff is also accountable in the place of suing which is define in the Section 15 of the Civil Procedure Code 1908.Now the main issues of the cyberspace is that the parties and the subject matter of dispute. for an e.g. if the party is resides in the other country and he wants to business in India he launch an e mail site which contains the subject matter of his business and if any dispute is raised then who are the competent authorities  who are eligible to solved the problem.

First we want to know about that what is jurisdiction and then the problem of jurisdiction under the cyber laws. According to Oxford Dictionary Jurisdiction means the right to administer justice. In the simple words Jurisdiction may be defined to be the power or authority of a court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it.

In other words, Jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. Jurisdiction is the power of a court to hear a case and determine a case. Jurisdiction essentially two types, subject matter jurisdiction and personal jurisdiction.

Now the main issue of our Article is the problem of jurisdiction under cyber laws. The word jurisdiction we can find in code of civil procedure 1908, but we cannot find the exact meaning of cyber space. So, we solved the problem of jurisdiction with the help of code of civil procedure 1908.The main problem of Internet Jurisdiction is the presence of multiple parties in various parts of the world who have only virtual nexus with each other. Then the problem of place is raised that where the party wants to sue?

Traditional requirements generally encompass two areas-

v  firstly, the place where the defendant resides, or

v  Secondly, where the cause of action arises.

v  Then the question is why we raised the issue of jurisdiction in cyber laws?

The answer of the why is the problem of jurisdiction is complete confusion and contradiction that plague judicial decisions in the area of Internet Jurisdiction. Suppose if a person decides to buy some products from a website, and pays money for it through a credit card, and suddenly some internet problem is occurred and the transaction is stopped. In this occasion whether a person is file a sue the owner of the site. But the owner of the site is in Singapore. The site itself is based in a server in South Africa. So the question is raised where the defendant resides? The transaction occurred on the net. So was it in India or in South Africa.

v  Then whether the corporation can be the part of the internet jurisdiction or an individual be a part of the internet jurisdiction?

In this regard there was a famous case of Cybersell,Inc. vs. Cybersell, Inc 1997 US App. The case is related with the service mark dispute between two corporations, one at Orlando and another at Arizona. The court held that the effect test does not apply with the same force to a corporation as it does to an individual “because a corporation does not suffer harm in a particular geographical location in the same sense that an individual does”.

v  Why the problem of jurisdiction in cyber laws?

The main problem is that the picture of place of suing and who are the parties is not clear. If one party wants to sue the other, where can he sue? Traditional requirements generally encompass two areas, the place where the defendant resides, or where the cause of action arises. In the Code of Civil Procedure 1908, Section 15 and 20 is dealt with the parties to sue and subject matter of the dispute. But in recently the place of plaintiff is also be an important part in the jurisdiction issues. Issues of this nature have contributed to the complete confusion and contradictions. Considering the lack of physical boundaries on the internet is it possible to reach out beyond the court’s geographical boundaries to haul a defendant into its court for conduct in cyberspace.

We are talking that after green revolution, the stage of industrial revolution plays a vital role in the field of economy and then we say technological revolution replace the industrial revolution but we not get the answer that in this cyber age or technological age we not know to where we sue and if our right is hamper then how we get the compensation and who will provide us the relief or compensation.

v  How the problem of jurisdiction is headache for the cyber laws?

The problem of jurisdiction is headache for the cyber laws because the problem of jurisdiction is not directly solved by the cyber laws, even the problem of jurisdiction is solved by the help of code of civil procedure 1908 and Information Technology Act 2000.

We know thr provisions of code of civil procedure 1908 but we did not know the provisions of Information Technology 2000.In Section 1 (2) and 75 (2) provides the issues relating to jurisdiction. But even if Indian courts are to claim jurisdiction and pass judgments on the basis of the principle expostulated by IT Act, it is unlikely that foreign Courts will enforce these judgments since they would not accept the principles utilized by the Act as adequate to grant Indian Courts Jurisdiction. This would also render the Act ineffective.

Suppose if a person buy some articles through electronic contracts in the process there was some internet problem is raised and suddenly the transaction will stopped and the person paid the cash through his credit card whether can he claim for relief if the answer is yes then where he file a sue.

Conclusion

The Indian Code of Civil Procedure 1908, bases territorial jurisdiction (Section 15 to 20) on two principles – firstly the place of residence of the defendant and secondly the place where the cause of action arises. However, there are no clear guidelines as to how these are to be determined. In the context of the Internet, residence of the defendant may well include either his place of physical residence or the place of where the web-site server is located. Similarly, the accessed or where its server is located. But in the absence of any statutory clarification, courts will be forced to rely upon precedents, such as those describe above.

References

v  Kamath Nandan, “Law Relating To Computers Internet & E Commerce” Universal Publishing House Co. Delhi, III Edition 2007.

v  Takwani C.k., “Civil Procedure”, Eastern Book Company Lucknow, V Edition 2005.