Jurisdiction in Cybercrime: A Borderless Threat

Cybercrime, it’s a word that has almost become synonymous with despair and hopelessness in today’s day and world. The reason is simple, the law makers are still putting  on their running shoes where the  internet has already crossed the finish line. One of the most lacking and difficult to address area is in cybercrime.

Before addressing that let understand what cybercrime simply means , it is defined as criminal activities carried out by means of computers or the Internet; thus it has a wide ambit, it ranges from trolling, identity theft, spamming, data , online fraud to illicit drug sale, online human trafficking and child pornography.

The issue of jurisdiction arises where the question of applicability of domestic comes into play.  To elucidate the same let us consider the following example:

Suppose a person sitting in the US in a state where publication of child pornography is not illegal submits the material to a website having its server in  Germany and the said material is accessed by a person sitting in India.

Jurisdiction in Cybercrime: A Borderless Threat

Then what laws will be applicable in the proceeding concerning the same, of the originator country, the country with the server or the  country of the consumer?

Normally, the applicability of laws within India can be broadly divided into the following major categories: laws applicable to all states of India barring Jammu and Kashmir, laws applicable to Jammu and Kashmir; and laws applicable to the entire country. Jammu and Kashmir has been granted a special status under the of India, and special laws are applicable to that state. Keeping in mind the universal nature of the impact of computers and the internet, the legislature has decided that the shall be applicable to the whole of India including Jammu and Kashmir. But the law goes even further Section 1 IT Act deals with the issue of applicability of this new law.[1]

1. This Act may be called the Information Technology Act,2000

2. It shall extend to the whole of India and, save as otherwise provided in this Act, it applies also to any offence or contravention there under committed outside India by any person

Meaning that the Act attributes to itself a worldwide scope. Section 75 of Information Technology Act , 2000 provide for extraterrestrial operation of the said law but these laws could be meaningful only when backed with provisions recognizing orders and warrants for Information issued by competent authorities outside their jurisdiction and measure for cooperation‘s for exchange of material and of computers crimes between law enforcement agencies.

 Section 3 of the IPC reads :

“3. of offences committed beyond, but which by law may be tried within, India.—Any person liable, by any 5 [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 6 [India].”

And section 4 reads:

 4 Extension of Code to extra-territorial offences. —The provi­sions of this Code apply also to any offence committed by—

8 [(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;]

9 [(3) any person in any place without and beyond India committing offence targeting a computer resource located in India .] 10 [ Explanation .—In this section—

(a) the word “offence” includes every act committed outside India which, if committed in India, would  become punishable under this Code;

(b) the expression “computer resource” shall have the meaning assigned to it in clause (k) of sub-section (1) of section 2 of the Information Technology Act, 2000.

Jurisdiction in Cybercrime: A Borderless Threat

Section 3 and 4 of IPC provide for application of the penal provisions overseas, however their execution remains a difficult prospect and so is the case for the provisions of the Act , questions of sovereignty and international law rises their head , extradition treaties and relationship between those two nations  or more nations involved come into play, thus the situation in respect of jurisdiction is dicey to say the least, the issue deepens due to  advent of technology , as tech aimed at fooling the authorities regarding the location of the users are being developed making the job difficult for an already lethargic administration.

Looking at the example aforementioned it can be said that cyber crime is a borderless threat as there is no defined border for cyber crimes. A person sitting in one country might indulge into uploading content on a website which might be legal in his country but a person sitting in India might be consuming that content despite being illegal. Hence, cyber crimes are often recognised as borderless crimes and laws have to be made to penalise crimes giving a defined border.

Owing to the above mentioned problems the victims of cyber crime are left helpless as they have no effective recourse to take. More and more are gaining access to technology and inevitably becoming a prospective victim , serious steps need to be taken so as to keep the legislation abreast with the changing time and there needs to be an international impetus towards worldwide co-operation so as to solve the technical issues of jurisdiction and bring about the real objective of criminal legislation which is justice.

[1] https://shodhganga.inflibnet.ac.in/bitstream/10603/188821/10/8%20chapter%206.pdf


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