ISSUES OF JURISDICTION IN CYBER-CRIMES
With the increasing advancement of technology, cyberspace has become highly available to all the people all over the world. Everyone is now linked through the internet and the world has become smaller as a result. Although there are positive aspects of this technological development, one cannot overlook the negative aspects as well.
Cyber-crimes have been on the rise due to this. Due to our increased exposure in the cyberspace, we are making ourselves vulnerable and likely targets of the cyber criminals. While there are certain laws in our country and the rest of the countries to counter cyber-crimes, often they do not follow a particular guideline and hence what is an offence in one country may not be an offence in another country.
WHAT IS THE MEANING OF JURISDICTION?
Jurisdiction is the authority of a court to hear case and resolve a dispute involving persons, properties or subject matter. The principles of Jurisdiction are usually enshrined in the Constitution of a country or state.
Usually, all the sovereign and independent states possess jurisdiction over all the people and property that falls within its territorial limits. For example, the High Court of Calcutta has jurisdiction over all the matters that are related to the state of West Bengal. It cannot interfere in a matter of another state as the High Court of that particular state will gave the jurisdiction over that matter. Again, the Supreme Court of India has jurisdiction over all matters of all the Indian states but none outside of India.
WHAT IS DIFFERENT WHEN IT COMES TO CYBER-CRIMES?
Cyber-crimes are probably the only crime which can transcend the territorial borders of the countries and hence it gives rise to the question of jurisdiction. In a cyber-crime, it is very much possible or the perpetrator to be in one country, his target or victim to be in a different country and the consequences of his actions to be felt in a third country. Hence the question comes, which country is going to prosecute this person provided that he is caught which in giggly unlikely in most of the cases of cyber-crimes.
India has several laws which deal with the issues of cyber-crimes like certain provisions of the Indian Penal Code, 1860 (IPC), the Information Technology Act and the National Cyber Security Policy, 2013. However, these laws are only applicable when the crime takes place within India; what about the crimes taking place outside India?
All the countries have their own set of laws that deal with the issue of cyber-crimes but unfortunately there is no uniformity among these laws. For example, pornography is banned in India but it is very much legal to sell pornography to people who are above the legal age in the United States. In that case, how will the Indian law enforcement punish the person who buys porn from an American? Problems like these pop up every now and then.
Next is the problem of extradition. Often, if two countries are on good terms, one country might allow the other country to extradite a national of either country for trial if that person is liable under any law. But that is not always the case. The government of one country will under no circumstance be willing to hand over their national to another country under any circumstances. The classic example for such a country is China.
Again, if the two countries in question do not get along very well and don’t have an Extradition Treaty in place, there possibility of extradition becomes nil.
The best example for this is Edward Snowden. He is an American citizen who worked for the National Security Agency (NSA) and in 2013, had leaked all the classified information NSA had on American citizens through an extensive clandestine surveillance system. Snowden fled to Russia as he was and still is wanted in America and there is no way Russia is going to hand over Snowden to America as the two countries don’t get along well and also do not have an Extradition Treaty in place.
The internet can be seen as an open platform where there is no jurisdiction of one country that prevails. It is multi-jurisdictional in nature as anyone from anywhere can access it at any time. This means that from the perspective of the users, the borders or the various countries are essentially transparent. And hence, it becomes very difficult for courts to determine jurisdiction. What is needed is one global platform where all the countries can come together and follow a uniform set of rules.
By Sayantani Rakshit