A detail presentation on Jurisdiction issues in cyberspace with special reference to minimum contacts theory, effects test, zippo test.

1. Jurisdiction Issues in
Cyberspace
By:
Atul S. Jaybhaye
B.A.LL.M.NET
Assistant Professor
Hidayatullah National Law University, Raipur

2. Meaning of Jurisdiction
 Power or authority of a Court to adjudge a case.
 The right, power, or authority to administer justice by hearing and determinin
g controversies.
 The authority of a court to hear a case and resolve a dispute involving person,
property and subject matter is referred as the jurisdiction of that court.
 This insures that one court is not overrun with cases from different districts
or jurisdictions.
 This is used to define the proper court in which to bring a particular case.
 It refers to the inherent authority of a court to hear case and to declare a
judgment.

3. Jurisdiction in Cyberspace:
 Internet has no Jurisdiction.
 Easy to access from any corner of the world.
 Issues Involved:
 (i) To what extent a court is legally competent to entertain a cross-border
dispute and apply the laws of the place where they are located; and
 (ii) When should a court or tribunal is entitled to assert jurisdiction as a result
of a dispute arising between private parties.
 (iii) When something goes wrong with contracts between parties in different
countries, there is often confusion as to where a court action should be
brought.
 (iv) Naturally everyone wants to sue in their home court.
 (v) That leads to jurisdictional disputes and uncertainty.

4. Types of Jurisdiction include:
 Personal Jurisdiction: The authority of a court to hear and decide a dispute
involving the particular parties before it.
 Subject Matter Jurisdiction: The authority of a court to hear and decide
a particular dispute before it.
 Original Jurisdiction: The authority of a court to hear and decide a case in
the first instance over the authority of other courts. For example, trial courts
are courts of original jurisdiction in many cases.
 Appellate Jurisdiction: The authority of a court to review a prior decision in
the same case by another “lower” court.

5. 3 Pre-Requisites of Jurisdiction
For a judgment to be valid and enforceable, 3 pre-
requisites needs to be satisfied:
I. Determining jurisdiction to prescribe
II. Determining jurisdiction to Adjudicate
III. Determining jurisdiction to Enforce

6. 3 Pre-Requisites of Jurisdiction
 Jurisdiction to prescribe:
 It means that the laws and regulations of a country apply to a
particular category of persons.
 The Jurisdiction to prescribe is the power of the State and its
privilege to apply its laws to persons, their activities or interests.
 Jurisdiction to Adjudicate:
 It means that a forum of adjudication has the power to decide a
dispute concerning a person or a thing.
 To fulfill the Jurisdiction to Adjudicate, a country must have the
jurisdiction to prescribe the law that it seeks to apply to decide the
subject dispute.
 It is also a possibility that there is jurisdiction to prescribe but no

7. 3 Pre-Requisites of Jurisdiction
 Jurisdiction to Enforce:
 It means a State’s power to direct a person to mandate compliance of its
rules and regulations by various means including administrative or police
action.
 It also means a State’s power to punish an offender of law for violation of
laws of the State.
 The jurisdiction to enforce shall apply only if a State has the jurisdiction to
prescribe.
 Very rarely, a State may allow another a State’s law enforcement team to
enforce their own State’s laws within the jurisdiction of another State
without due written consent of the State.

8. Pre-Requisites of Jurisdiction
 The jurisdiction to prescribe is based on different
theories:
 Subjective territoriality
 Objective territoriality
 Nationality
 Universality

9. The jurisdiction to prescribe is based on
different theories:
 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.
 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.
 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.
 This principle has emerged into a widely accepted test to determine
jurisdiction in the cyberspace, commonly known as “effects
jurisdiction/tests.”

10. The jurisdiction to prescribe is based on
different theories:
 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].

11. The jurisdiction to prescribe is based on
different theories:
 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
jurisdiction principles.

12. Tests to determine jurisdictions: USA
I. Minimum Contacts theory
II. Effects test
III. Sliding scale theory

13. Tests to determine jurisdictions:
 Minimum Contacts theory:
 Meaning
 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.

14. Minimum Contacts theory:
 The theory was laid down in a landmark case i.e.
 International Shoe Co. v. Washington, 326 U.S. 310 (1945).
 It 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.
 Held: Suit cannot be brought against an individual unless they have
minimum contacts with the forum state.

15. Minimum Contacts theory:
 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.

16. Tests to determine jurisdictions:
 ‘Effects test”:
 Following conditions needs 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.
 Note: 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.

17. ‘Effects test”
 The theory was laid down in a landmark case i.e.
 Calder v. Jones, 465 U.S. 783 (1984),
 It was a case in which the 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 libelous 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 libelous 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 libelous assertion. Held that California courts had
jurisdiction over the defendant.

18. ‘Effects test”
 Calder v. Jones, 465 U.S. 783 (1984)
 Facts:
 The plaintiff, actress Shirley Jones sued the defendants, the National Enquirer,
its distributor, the writer of the article, and Calder, the editor-in-chief of the
magazine, over an October 9, 1979 article in which the Enquirer alleged that
Jones was an alcoholic.
 Jones lived in California, and although the Enquirer article had been written and
edited in Florida, Jones filed her lawsuit in a California state court.
 Jones asserted that the court had jurisdiction based on the large
circulation Enquirer enjoyed in California.
 . Held that California courts had jurisdiction over the defendant.

19. Tests to determine jurisdictions:
 Sliding scale theory:
 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.

22. Jurisdiction under IT Act, 2000.

23. 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 .

24. Personal jurisdiction under C.P.C., 1908
 Sec. 20- Other suits to be instituted where defendants reside or cause of
action arises.-
 every suit shall be instituted in a Court within the local limits of whose
jurisdiction—
 (a) the defendant, or each of the defendants where there are more than one,
at the time of the commencement of the suit, actually and voluntarily
resides, or carries on business, or personally works for gain; or
 (b) any of the defendants, where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on
business, or personally works for gain, provided that in such case either the
leave of the Court is given, or the defendants who do not reside, or carry on
business, or personally work for gain, as aforesaid, acquiesce in such
institution; or
 (c) the cause of action, wholly or in part, arises.

25. Application of personal jurisdiction tests
by Indian courts:
 Casio India Co. Limited v. Ashita Tele Systems pvt. Ltd.
 2003 (27) PTC 265 (Del)
 The High Court of Delhi in the first case of its kind, passed an injunction
against the defendant from using the website www.casioindia.com on the
basis of the fact that the website of Defendant can be accessed from Delhi,
which is sufficient to invoke the territorial jurisdiction of this Court.
 The Court further held the said website/ domain name to be
similar/deceptively similar to the registered trade mark "Casio" and website/
domain name of the Plaintiff i.e. CasioIndiaCompany.com, CasioIndia.org,
CasioIndia.net as well as CasioIndia.info.

26. Application of personal jurisdiction tests
by Indian courts:
 Independent News Service Pvt. Limited v. India Broadcast Live Llc And Ors
 2007 (35) PTC 177 (Del.)
 Adjudicating the suit of passing off action initiated by the Plaintiff to injunct the
Defendants from using the domain name www.indiatvlive.com, wherein the
defendants were neither residing nor carrying on business within the territorial
jurisdiction of the court.
 where the website was an interactive one, as opposed to one merely conveying
information (static website) and where the target audience and a large consumer
base of the website was located, the court could exercise jurisdiction over the
matter, irrespective of the location of the defendant.
 The Court further held that the website "indiatvlive.com" of Defendant is not
wholly of a 'passive' character.

27. Application of personal jurisdiction tests
by Indian courts:
 Banyan Tree Holding (P) Limited v. A. Murali Krishna Reddy and Anr.
 CS (OS) No. 894/2008
 Suit for passing off was filed by the Plaintiff who was using the word
mark 'Banyan Tree' since 1994 and websites
namely www.banyantree.com and www.banayantreespa.com since
1996 against the use of the word 'Banyan Tree Retreat' and
advertisement of the same on the
website www.makprojects.com/banyantree of the defendants which
was also accessible in Delhi.
 The most striking peculiarity of the case was that neither of the
parties were located within the territorial Jurisdiction of the Court.

28. Application of personal jurisdiction tests
by Indian courts:
 Issue: whether accessibility of a website in a particular place may itself be
sufficient for the courts of that place to exercise personal jurisdiction over
the owners of the website?
 The court held that merely accessing a website in Delhi would not satisfy the
exercise of jurisdiction by the Delhi court.
 The following questions needs to be addressed:
 Sliding scale test:
 What was the degree of interactive of the website?
 Effect Test:
 Did the specific targeting of the forum state result in injury or harm to the
plaintiff?

29. Thank you….