Jurisdiction in Cyberspace

Article excerpt

In cyber crimes, the question of judicial jurisdiction cannot be ignored. Judicial jurisdiction refers to the power of the courts to hear cases, render judgment, and enforce it according to the law.

In a nutshell, the following questions have to be resolved before cyber disputes can be decided: What courts will hear the case considering that cyberspace is not bound by national borders? Which laws of what country will apply? What government will enforce the judgment?

To maintain a lawsuit within the national borders of a country, its courts must have jurisdiction over the person (in personam jurisdiction); or jurisdiction over property (in rem jurisdiction); or jurisdiction over the subject matter of the lawsuit.

This simply means the jurisdiction of conventional courts over disputes is geographically based. Courts in the Philippines, for example, have power only over persons and things having some connection or relationship with the Philippines.

However, this is not the situation, in lawsuits arising from Internet-related transactions since the Internet is both multinational and non-national. An Internet user or surfer who moves from one website to another is not concerned whether the file that he is viewing is on a computer in the United States or France or the Philippines. The expense and the speed of message transmission on the Internet are almost totally distinct from the physical location.

There is also no major connection of physical jurisdiction and an Internet address such that it is difficult at times to trace the physical location of an Internet user or the location of information accessed on-line.

But more than these peculiarities of the Internet, anonymous communication through the Internet is now available to Internet users due to the facility of cryptographic tools and the services of third parties like remailer operators.

How can a country then claim to have jurisdiction in matters on the Internet when there may be difficulty in pinpointing the locating the information source - and worse, the identity of the person against whom a lawsuit is being planned may be anonymous?

There's also the reality that an Internet user can conveniently transfer his operations as well as his Internet address to another country anytime. In short, an Internet user need not even have any physical movement since he has the flexibility to transfer his Internet address and/or operations to other countries to evade domestic regulations of some countries that he considers restrictive to his Internet transactions.

Since all Internet addresses are portable and they are not physical addresses in real space but are just addresses in cyberspace, jurisdictional problems on cyber crimes occur which need clarification through legislation.

The bottomline is that the principle of territorial jurisdiction dependent on physical location does not apply to cyberspace since physical boundaries are not relevant to cyberspace. Territorial jurisdiction simply means that the authority of a court is limited within the confines of the national borders of a country.

Considering also the multinational nature of the Internet, it follows that there may be more than one legal system applicable to resove cyber disputes. Again, the problem may relate to the inconsistencies and differences of the laws of different countries commonly referred to as "conflict of laws."

If the parties involved in a cyber transaction agree in advance on the particular legal system that will govern disputes by inserting in the cyber contract the so called "choice of law" clause, this will minimize problems on cyber jurisdiction.

But then, majority of cyber cases do not fall under this category.

The same is true if there are bilateral or multilateral treaties between or among the countries involved in a cyber dispute.

There may be cases where the courts of one country may enforce the laws and/or judicial decisions of another country due to the existence of treaties. …