SYMBIOSIS LAW SCHOOL, PUNE

1ST INTERNAL ASSESSMENT

SUBJECT: INFORMATION TECHNOLOGY LAW

TOPIC: Critical Essay on “Internet and Jurisdiction- Global

Status”

SUBMITTED BY:

NAME: BANDANA SAIKIA

COURSE: BA LLB 3RD YEAR (2019-2024)

DIVISION: ‘E’

P.R.N. NUMBER: 19010125405

 INTERNET AND JURISDICTION – GLOBAL STATUS

ABSTRACT

The Internet's arrival was a landmark moment in the human history. The foremost objective
behind evolution of the Internet was to facilitate the growing e-commerce in late 1990s.
Today, the Internet has ushered in a new area of meeting human consumptions at our
fingertips with emerging e-commerce sites like Amazon, Alibaba, and streaming sites like
Netflix, Amazon Prime video and so on. However, the subject of jurisdiction has become a
contentious issue in discussions about the Internet's future. The cross-border characteristic of
the Internet has resulted in extraordinary benefits for humanity. It does, however, cause
problems among legal systems based on territoriality of jurisdiction, especially when
engaging with Internet-related disputes and misconduct on the global network. On that note,
this critical essay aims at discussing the intricacies surrounding internet jurisdiction and
discusses some of the landmark cases on court’s capacity to confer jurisdiction, as well as a
note some of the sluing developing discussion on this matter.

Keywords: Cyber, E-commerce, Expression, Internet, and Jurisdiction.

INTRODUCTION

The Internet and its numerous applications have drastically transformed how we connect,
conduct business, enter into contracts, consume media material, and distribute news and other
information. The Internet's transnational character has resulted in unparalleled social,
economic, and political benefits for humanity. 1 The extraordinary rise of e-commerce,
including electronic data interchange and electronic financial services such as net banking
and payment processing, has resulted from the increasing rate of Internet usage and the
concentration of a wide range of consumers and producers in cyberspace. 2 Since many of
these exchanges and relationships occur across a geographical border, problems of
jurisdictional competence arise. The difficulty with Internet jurisdiction is achieving a
suitable balance between the numerous interests at risk, as well as expressing that balance in

1
Bertand De La Chapelle, Paul Fehlinger, “Jurisdiction on the internet: How to move beyond the legal arms
race”, Observer Research Foundation, https://www.orfonline.org/expert-speak/jurisdiction-on-the-internet/, (Oct
14, 2016).
2
Brian Covotta, “Personal Jurisdiction and the Internet: An Introduction”, Berkeley Technology Law Journal ,
1998, Vol. 13, No. 1, Annual Review of Law and Technology (1998), pp. 265-269.

2
a sufficiently clear and specific manner to give effective direction for those required to act in
accordance with the expressed balance.3

Nevertheless, ubiquity has exacerbated tensions because internationally accessible content

and services may be legal in one place but illegal or even criminal in another. Today's
Internet transactions sometimes include multiple countries at the same time, generating
countless potential for opposing laws to collide. 4 As a result, defining applicable laws,
allowing for their enforcement, and providing redress processes in cases of transnational
cybercrime or illegal online abuse becomes increasingly difficult.

DETERMINING JURISDICTION ACROSS COUNTRIES : LANDMARK CASES AND

THEORIES CUM TESTS

Minimum Contacts Theory: In the case of International Shoe v. Washington5, the United
States Supreme Court determined that a party can be held responsible for cross-border
problems if they had at least a basic amount of interaction with the state trying to hold them
liable and a reasonable expectation of being sued in that state. The defendant's "clear and
consistent" operations in the forum state would also warrant "general jurisdiction," which
would be the same as doing business under state law jurisdictional legislation.

Purposeful Availment Test: The US Apex Court in Hanson v. Denckla 6established that the
implementation of the contact rule will differ depending on the quality and character of the
defendant's activity, but it is requisite in each case that the defendant purposefully divests
itself of the entitlement of organizing activities within the forum State, thus invoking the
benefits and privileges of its laws. Further in Burger King v. Rudzewicz7, where the court
established that jurisdiction cannot be denied just since the defendant did not physically enter
the forum State and rejected the concept that a lack of physical interactions can defeat
personal jurisdiction in another State as long as a commercial actor's efforts are 'purposefully
directed' toward inhabitants of that State.

The Effect Test: In Calder v. Jones8, the court suggested that deliberate tortfeasors may be
liable to forum state jurisdiction if their purposeful conduct had a predictable consequence or

3
Dan Jerker B. Svantesson, Solving the Internet Jurisdiction Puzzle, Oxford University Press, 02 (2017).
4
Julia Hornle, Internet Jurisdiction: Law and Practice, Oxford University Press, 05 (2020).
5
International Shoe v. Washington, 326 U.S. 310 (1945).
6
Hanson v. Denckla, 357 U.S. 235 (1958).
7
Burger King v. Rudzewicz, 471 U.S. 462 (1985).
8
Calder v. Jones, 465, US 783 (1984).

3
effect in the forum state. The "effects" test can be used when an activity is focused at a
certain forum, even if there is minimal communication.

GROWING GLOBAL CONCERNS AND INTERNET JURISDICTION ISSUES

The premise that the Internet is run by a highly decentralized universe of actors, rules,
processes, protocols, and institutions, many of which are non-state entities, makes any
regulatory framework difficult to apply and execute. Some of the pertinent challenges that the
Courts must handle globally include liability in the case of internet-based services, choice of
law in the event of a dispute, and recognition and enforcement of national laws.

THE THREE TOPICAL AMBITS

1. Expression Concerns: Concerns about offensive speech, radicalism, and rumors, as

well as broad revision of data privacy regulations around the world, have dominated
numerous discussions concerning the nexus of the internet, jurisdiction, and
expression.
These debates are becoming increasingly dominated by broad assertions, and there is
a growing desire to reconsider the role of internet intermediaries. Judges around the
world have attempted to establish a balance between harm caused by hate speech and
the threat to freedom of expression and speech. For example, the Canadian Supreme
Court in Sasketchwan Case9, identified two types of hate speech: ostracizing people
based on their membership in a targeted group, thereby affecting inclusiveness and
integrity; and hampering their ability to react to substantiative thoughts under debate,
thus posing a serious barrier to their full participation in democracy.
2. National Security: There is no doubt that nation-states can prosecute Internet users
for leaking national secrets, fabricating government papers, or instigating war,
regardless of location. Since these activities endanger national security wherever they
occur, they are subject to international jurisdiction. Similarly, publicly inciting torture
or genocide is a universal crime. However, Criminals may hugely benefit from
jurisdictional barriers to the tracking, inquiry, and prosecution of their crimes. Data
breaches by a company in one state may affect a global group of users.
3. Economy: Much worldwide attention has recently been focused on the cross-border
application of territorially based IPR, taxes, and innovative technologies such as the
Internet of Things and blockchain in the economic environment. With the growing e-
9
Sasketchwan v. Whatcott , (2013) 1 SCR 467.

4
 commerce transactions happening all around the globe poses extensive jurisdictional
concerns in terms of meeting disputes such as internet transaction fraud and so on.

CONCLUSION

The cross-border character of the Internet clashes with the complex web of territorially bound
national laws, causing significant concerns about jurisdictional difficulties in cyberspace.
Given the lack of physical obstacles, internet have caused considerable issues in determining
jurisdiction, with the fundamental worry being the lack of a specific mechanism for
establishing jurisdiction. International mechanisms such as the Convention on Cyber Crime
seek international collaboration to resolve jurisdictional difficulties, and the jurisprudence has
evolved over time. The issue boils down to whether or not local courts can apply domestic
laws extraterritorially, and whether or not this is justified. As a result, a bigger debate over
the schism between the idea of state sovereignty and the notion of national sovereignty
emerges. Given the fact that the internet has become an integral part of people's daily lives,
the issue of jurisdictional assertion has taken on new significance. It is extremely difficult to
determine the location of an offender, whereas committing crimes and contraventions is
similarly simple. Considering cyberspace is a realm with no bounds, it is imperative that a
unique legislation be developed that can be used to deal with cases of cybercrime without
difficulty or ambiguity. To keep the Internet's global character and its social, political, and
economic benefits for future generations, all stakeholders must work together more. To
preserve legal compatibility and due process across borders, we must collaboratively
establish new legal frameworks that are as global as the Internet itself.