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Assam University Journal of Science & Technology: Physical Sciences and Technology Vol. 4 Number II 58-66,2009 Jurisdictional Jurisprudence and Cyberspace Golak Prasad Sahoo Law School, Banaras Hindu University, Varanasi- 221005, India Abstract The paper deals with Jufisdictional Jurisprudence and cyberspace, in general. In order to ?rotectthe democra.tic rights of citizens in the borderless world, courts allover are strugglingfor coming up wIth a coherent doctrme of personal jur
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  Assam University Journal of Science & Technology: Physical Sciences and TechnologyVol. 4 Number II 58-66,2009 Jurisdictional Jurisprudence and Cyberspace Golak Prasad Sahoo Law School, Banaras Hindu University, Varanasi-221005, India Abstract The paper deals with Jufisdictional Jurisprudence and cyberspace, in general. In order to ?rotectthe democra.ticrights of citizens in the borderless world, courts allover are strugglingfor coming up wIth a coherent doctrme of personal jurisdiction for the internet transactions. Introduction: In the new millennium, the major coups of the'Techno-Scientific Culture' have resulted a new pad of 'Information Revolution' which has touchedsocio-economic organizations and governmentalstructure of human beings. The chief foci of Information Technology are they defeat thegeographical, legal and jurisdictional boundaries of a particular sovereign nation; and it is rightlysaid 'Netizens and web-sites are nowhere and allover the place'. In this context, the InformationRevolution' has created for itself one of the mostdebated questions i.e. of jurisdiction. Sincejurisdiction is the 'sin qua non' of administration of ustice, a judgment or order or decree is passedby the court without having the jurisdiction, suchjudgment, or order or decree can be said as coram non-judice -before a courtwhich has nojurisdiction of he matter or before one who is ndtajudge, and its invalidity can be set up wheneverit is sought to be enforced as a foundation for aright even at the stage of execution or collateralproceeding.The laws rel~~ing to jurisdictional jurisprudencecharacterisiflg in the terms of the subject matter,territorial aspects, pecuniary and prescribe aspectshave been diluted, and do not answer to theemerging issues posed by the cyberspace referringto the standard test laid down in the past nineteenthcentury doctrine. To meet the ends of justice, anew brand of urisdictional j urisprudence has beenemerged with startling results as there is little orno domestic legislative recognition of he need toevolve a distinct set of legislations for internetjurisdiction. Before appreciating the decisions of the various courts of the United States of America and India, the quintessential question remains;-What is the meaning and the connotations ofthe word 'Jurisdiction'?'Jurisdiction', according to The EncyclopaediaAmerica is power or authority. It is usually applied to courts and quasi-judicial bodies describing thescope of their right to act.Jurisdiction in the sense of udicial power, oftendescribes the general authority of a court to hearand determine controversies and to carry itsjudgement into effect. In this abstract sense it doesnot relate to particular case, but instead refers tothe scope of courts, capacity to act within certaingeographical boundaries and in connection withvarious kinds of legal controversies. In a morelimited sense, jurisdiction means the power of acourt to make valid and binding determination in particular controversy. This kind of jurisdictionrelates solely to the court's authority in terms of the specific subject matter and property which areinvolved in the case under consideration. Encyclopaedia Britannica defines, ''jurisdiction in general, the exercise oflawful authority, especiallyby a court or a judge and so that extent or limitswith which such authority is exercisable. It hasprimarily a territorial signification, but where itspower are otherwise limited, it is rather a mater of competence and in system of law based oncodes this distinction is more clearly evident thanit is in English and U.S. law . -58 -  Halsbury's Laws of England clearly acknowledgesjurisdiction as, Where, by reason of any limitationimposed by a statute, charter or commission, acourt without jurisdiction to entertain any particularclaim or matter, neither the acquiescence nor theexpress consent of parties can confer jurisdictionupon the court, nor can consent give a courtjurisdiction The apex court of India observed, a defect of jurisdiction strikes at the very authority of he courtto pass any decree, and such a defect cannot becured even by consent of parties. The Hon'bleHigh Court, Bombay held that the jurisdiction of the court would be ousted, if here was a bar to themaintainability of he suit . In wider sense the expression jurisdiction does notmean the power to do or order the act impugnedbut generally the authority of he judicial official to act in the terms of subject matter, the prescriptivematter, the pecuniary and the territorial aspects.A court may be given exclusive jurisdiction inrespect of a particular subjectmater by theSovereign, or the constitution or statute, and it mayprescribe restrictions/constraints in respect of hepecuniary or the territorial aspects. Therefore, thecourt need not always have an unfettered anduncircumcised authority to deal with even with aparticular subject matter. However,jurisdiction toentertain the suit is different from the point of maintainability of the suit. The court may havejurisdiction to entertain a suit in relation to thegrievances made by the plaintiff yet the suit asfield may not be maintainable for various reasons.Similarly a suit may be otherwise maintainable,yet the court in which the suit is instituted may nothave jurisdiction to entertain the same. Cyberspace andJ urisdiction On the threshold of the twenty first century, the'knowledge capitalism' is the guiding stars in thespectrum of social, economic and political fields,and by virtue of new inventions and innovations,it drafts history of e-era in realm of post modernisation.In a country like ours there is a novel saying that,'Ubi jus ebi remedies'-there is a right and there isa remedy. In the last two decades, the pervading impact of information technology being atransnational character poses a serious threat tothe administration of justice. At this juncture afundamental question crops up which courtswould have jurisdiction to adjudicate disputesbetween the parties transacting on the internet? Awidely recognised view which is gaining groundreality is that the existing law of jurisdiction is redundant for the cyber world and an entirelydifferent set of rules is required to govern thejurisdiction over the internet which is free fromthe shackles of geographical borders. Position in America According to the U.S. constitution, the lawsuitscan be brought either in a state or of federal court.Provided that the state in which the court is locatedmust have a long-arm statute which allows thecourt to assert jurisdiction over non-residentdefendant. Although these statutes will differ fromstate to state, Fifth and Fourteen Amendments of the U.S. Constitution lay down the outer limitsfor the courts while asserting jurisdiction. Thismeans that before asserting jurisdiction over thenon-resident defendant, the court has to complywith the provisions laid down in Fifth and FourteenAmendments Due process Clouse.Before moving further, it is pertinent that the United States hasnot codifiedthe law of jurisdiction. Due to this, Courts (mainly SupremeCourt) have evolved the various theories tomeasure the legitimate exercise of udicial powerover the parties to the litigation. In view of above, it is necessary to study the history of the development of the American law of urisdiction.From early times, in United States the law of jurisdiction has been classified as follows;- Subject matter of jurisdiction It is the cause, the object and the thing is dispute.The authority of a court to decide a particular type of case is called subject mater jurisdiction and is set by the federal or state constitution or by thestatute ofthe state. Personal jurisdiction Personal jurisdiction is concerned with the power of the court to decide a case between the parties.For a court to exercise jurisdiction, there must bea statutory or Common Law Source of urisdiction,which does not surpass the limitations imposed by constitutional dues process. Personal - 59-  jurisdiction may be ( a) General or (b) Specific;(a) General jurisdiction equates to 'continuous andsystematic contacts' with the forums, whether ornot the contacts are related to suit. It would allowthe forum to assert jurisdiction for any cause of action. Or(b) A specific jurisdiction may arise from even afew contacts with the forum related to the suit. It would permit the forum to assert jurisdiction onlyto adjudiCation a dispute to which the contacts arerelated. Prescriptive jurisdiction PresGriptive jurisdiction is the exercise of stateauthority to regulate local conduct, transactionsand activities. The very first U.S. Restatement, laiddown in the 1934, mentionedsome simplemechanical rules for choosing what law to applyin case of inter jurisdictional litigation. In suchcases the substance of the claim will determinethe application of he rule, e.g. in a wrong relatedto 'torts' the first restatement provided that the law of the place where wrong is committed will beapplicable. Thus, the last event necessary to makea wrongdoer liable for the alleged tort would beconsidered. In absence of clear rules and regulations, the courtsin the United States of America have devised newjurisprudence in order to resolve rivalry grievances of the parties in cyber jungle. Prior to the midnineties, there were very few decisions by U.S.Courts on competence over the Internet disputes.Since 1995, there has been a true explosion of cyber space litigation. American courts have usedvarious tests to determine whether they havejurisdiction over the Internet disputes. Some courtshave simply applied traditional rules while otherhas tried to devise new tests to accommodate thepeculiarities of he medium. (a) Pennoyer Theory The traditional law of personal jurisdiction in theUnited State is reflected in the landmark decision of the US Supreme Court. In the Year 1877,Penn oyer laid down the fundamental principlesthat every state possesses exclusive jurisdictionand Sovereignty over persons and the propertywithin its territory and no state can exercise directjurisdiction and authority over person and propertywithin its boarder. Due to these laws one statecould not infringe the laws of another state becausethat other state is also a sovereign power .However, off late during 18th and early 19th.centuries, the federalist model of urisdiction uponwhich Pennoyer theory was founded no longerreflected political and commercial reality. Afterthe second world wars, there was an exponential growth of industrialization, urbanization, modernisation and 'computerization in the allwalks of ife. The expansion ofthe United States,international Commerce after the world wars andthe increasing ease of ravel across the state linescreated problems when state could not assert jurisdiction over entities that established connections with the state. The interstate movement of goods and persons compelled thestates to provide a way for their citizens to suenon-residents in local court. Unfortunately,Pennoyer Test could not stand the test oftime, asit has the effect of prohibiting the states formexercising personal jurisdiction over persons andthings physically located outside of its territoriallimits. Due to this, and to keep a pace with thechanging needs ofthe society, the state started toenact long arm statutes, which permitted the localcourts to exercise personal jurisdiction over nonresidents-defendants. Provided the exercise of jurisdiction did not violate the 14th Amendment of the US Constitution. (b) Minimum Contact Theory Now States wanted to give its citizens an optionto sue non-residents in local courts. The impact if these changes couldbe seen in a landmarkjudgment in which theUnited Supreme Courtupheld a Massachusetts Statutes, deeming thatnon-residents using the roads of Massachusettsconsented to be used in that state. After analysingthe perspective of natural person, the court heldthat a state may sue a non-resident foreign corporation provided the corporation has minimum Contact Test with the forum state andprovided that exercise of jurisdiction does notviolate the principle offair play and justice . Thiscase permits the exercise of urisdiction in the light of virtual presence of defendant within a sate.Furthermore, the minimum contacts principlesdeveloped by Supreme Court in International ShoeCo. v. Washington, Office of Unemployment - 60-  Compensation and Placement et al. Accordingly principle , the court held that, the e-mail, Web it analysed the distinction between specific and page, and forum message were both directed atgeneral jurisdiction. Historically, personal Arizona and allegedly caused foreseeable harmjuris,diction could only satisfy due process ifthe to EDIAS. The defendant, in the instant case foreign defendant was present within the operated a computer Bulletin board system fromjurisdiction or consented to jurisdiction. However, their home California. They loaded on theirU.S. Supreme Court by this case Cleared the mist . bulletin board images depicting bestiality, oral sex,that was gathered around in 'in rem jurisdiction incest etc. Access to these files was limited to theand personam jurisdiction', by making it clear that members who were given password after they paidthere must be certain relationship between non-a membership. Subsequently, an undercover agentresidents property and law suit. The factual matrix was accepted as an agent. When the agent of he instant case; A New York Volkswagen dealer downloaded explicit mate~ials pertaining oral sex,sold a car t6 New York residents. The New York incest, bestiality etc. in Memphis in Tennesseecouple relocated to Oklahoma where they met with which violated moral standard laid down inan automobile accident that injured the wife and Teimessee District. The defendant belonging tochild. The purchaser filled a suit in Okalahoma the resident of California vehemently objected thatunder its'long-arm statute claiming defective that-act did not occur in the territorial jurisdictionautomobile design . The Supreme Court held that Tennessee rather California. The Sixth Circuitthe defendant corporation did not have minimum relying on the effects test delivered ajudgmentcontacts with state of Oklahoma because they that Tennessee court is enough competent tolimited their sales, advertisements and business entertain the matterwithin the New York only. The sole fact that then (d) Purpose/ulAvailment Theory product sold was readily movable in commercedid not subject to the defendants jurisdiction of courts outside the area of where they conductedbusiness. The court held that foresee ability hasnever been a sufficient benchmark for personaljurisdiction under Due process Clause. (c) Effects Theory When a defendant targets a particular forum, hemay be called to answer his or her actions in thatforum. The court asserted its jurisdiction on theprinciple that when the defendant knew that heraction would be injurious to the plaintiff, and thenshe must reasonably anticipate being sued into thecourt where the injury occurred. The EffectsPrinciple is of particular importance in cyberspace because conduct in cyber space often haseffects in various jurisdictions. A case centred onthat an allegation that New Mexico publishedallegedly defamatory business statements about an Arizona company. The plaintiff was a formerdistributor of he defendant. The defendant, whichhas no Arizona presence, sent e-mail to somecustomers and other known distributors, andposted information relating to the termination of the supplier/distributor relationship, which theplaintiff contended as defamatory on its Web site in the New Mexico. While endorsing the effectsThe concept of purposeful availment is thatperson by conducting activities within a stateenjoys certain benefits and privileges of hat stateand with these privileges certain obligation, alsoarises which bears nexus with the activities withinthe state which require them person to answerlitigations in that state. A principal theory advancedto justify that a non-resident defendant hassufficient minimum contacts with a forum relatesto whether or not the defendant has purposefullyavailed himself or herself of he benefits of doingbusiness in the jurisdiction. Parties who reach out beyond one state and creates continuing relationships and obligations with the citizens of another state are subject to relations and sanctionsin the other states for consequences of theiractivities. However, the United Courts held thatthe doctrine of minimum contacts would apply tocontracts of electronic nature. The factual matrix of the instant case as-Richard Patterson, locatedin Texas, entered into an electronic sharewareregistration agreement with CompuServe thatpermitted the use by Richard Patterson of theservices of CompuServe for the marketing andsale of his Internet navigation product. WhenCompuServe later marketed and sold its InternetNavigation Software, an Intellectual Property - 61 -
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