IT LAW: INTERNET JURISDICTION

INTERNAL ASSESSMENT I

IT LAW I

INTERNET JURISDICTION

(Citation method: Harvard’s Bluebook Citation method, 20th edition)

Name: Shubhit Gaur

Class: BA LLB (Division D)

PRN: 18010125346

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TABLE OF CONTENTS

INTERNET JURISDICTION..........................................................................................................3

IMPORTANCE...........................................................................................................................3

EVIDENCES AND ANALYSIS.....................................................................................................3

PERSONAL JURISDICTION.....................................................................................................3

EVOLUTION..............................................................................................................................4

INDIAN CONTEXT...................................................................................................................6

CONCLUSION AND SUGGESTIONS..........................................................................................7

CHALLENGES...........................................................................................................................7

SUGGESTIONS..............................................................................................................................8

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INTERNET JURISDICTION
IMPORTANCE
Internet jurisdiction has always been a point of debate and a startling issue of jurisprudence in
the courts of law. What shall be the exact location of the defendant, where must the alleged
wrong be committed; who has the authority over an abstract cyber space activity have been some
questions pervading the judicial peripheries.

The problem of internet jurisdiction and its subsequent determination is a multi-dimensional

one. At the domestic level, it becomes difficult to understand where must the cause of action may
have arisen and what court should entertain the matter when both the plaintiff and defendant of a
particular wrong do not belong to the territorial jurisdiction of a particular court or where the
internet operator does not have any official business address or whether the website or interface
so created by him is open to voluntary engagement by the citizens.

However, this problem does not restrict itself to the national level, it goes way beyond that.
When one person operates on the cyber space and provides ‘information’ on a global basis, he
certainly does not expect himself to be governed by multiple laws of multiple sovereign states,
their national and transnational institutions. Therefore, factors such as morality, ideology and
legal framework become reasons of opposition by one state of the other in the international
regime, which marks the reason why there should be conclusive directions for determining
jurisdiction.

EVIDENCES AND ANALYSIS

PERSONAL JURISDICTION
It must be noted that the entire discussion revolves not around the aspect of general jurisdiction
but ‘Personal Jurisdiction.’ Both can be distinguished in terms of what is considered as a wrong
in a particular state which is adjudicating upon it in comparison to its overall morality and
similar legal standings in other sovereign states. For example, it may be a wrong for women to
be not wearing a ‘hijab’ in public places in most Islamic Countries but not in the United States of
America. However, a particular sovereign Islamic state can make it mandatory for US nationals

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to wear Hijab when they are visiting their country and take cognizance of an issue as per their
right of observing Personal Jurisdiction in the matter, as against a general jurisdiction for
offences such as murder, theft, arson etc.

However, what will constitute as a matter enough even for invoking personal jurisdiction for
countries is a tough call over internet in terms of whether the particular activity or post over the
internet was directed towards the observing recipient state (hereinafter ‘Forum State’), whether
the same has affected the citizens in any way, could the creator of the post regulate/control its
viewership or accessibility etc. To answer this question, there have been multiple cases where
tests are evolved to put the matter to rest.

EVOLUTION
Amongst the same, International Shoe Company v Washington 326 U.S. 310 (1945)1 was the
first case in which a formal discussion on the issue of internet jurisdiction was conducted and
thereafter the test of “Minimum Contact” was established. Where the plaintiff was an online
shoe retail company who did not have any official address in the forum state objected to the
state’s compulsory levying of taxation on the company, the courts observed that: since the
business of the company transacts with the resident of the state, a minimum amount of contact
has been established, in reference to which, personal jurisdiction can be invoked.

Therefore, it becomes clear that the minimum contact test suggested that only a certain amount
of indulgence had to be shown for the courts to institute actions against internet operators.
However, this approach has been widely termed as ‘regressive’ and obnoxious by various jurists
for the prime reason that it does not take into account various important factors such as
consumer’s choice, open ended interface of internet websites, incidental indulgence with the
affairs of a sovereign state.

Bearing the same in mind, the courts in Asahi Metal industry Co. v Superior Court2, laid
down the test of “Purposeful availment” which states that only in matters whereby the actor
over the internet has wilfully and with intent directed the contents of an activity towards the
forum state or its residents, only then the courts can take cognizance of it under their personal
jurisdiction.
1
International Shoe Company v Washington 326 U.S. 310 (1945)
2
Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987)

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The same has been looked as a substantial and before-age development in internet jurisdiction
stretching as back as the 1980’s in the US and it clearly implied that mere casual, incidental or
random effects of an internet activity shall not be considered as cause of action in forum state.

However, with the advent of new technology and developments of e-commerce activities,
spectrum and horizon of cyberspace proved to be a threshold point for the redundancy of this
approach. Retail or other activities were now not only restricted to targeting a particular set of
audience of a particular state or area. The reach was increasing as the world was getting globally
connected. 3

Therefore, in Zippo Manufacturing Co. v. Zippo Dot Com, Inc. 4 , the Sliding Scale test was
introduced which depended upon the interactivity of the websites with the customers. Whether
the website as passive, active or inactive decided the jurisdictions of the court. Whilst this
approach was a step forward, it can be said that a lot of the development arranged through the
analyses of purposeful availment was lost. Large websites having interactive user interface and
directly dealing with the residents of a state in terms of commercial businesses, data and
information sharing etc. were held responsible as against those which were merely having their
presence on the World Wide Web. However, the factor of whether a particular thing is directed
with malicious and derogatory intent was lost in this approach.

The integration however of both the above mentioned approaches could be found if one falls
back a little in time to analyse the effect test which was first laid down in Calder v Jones.5 This
has been undoubtedly established as a landmark authority and the effect test currently leads the
priority table in determining Internet Jurisdiction of a case. It states that in case, interactivity of a
particular website is not enough to establish personal jurisdiction and if done will defeat the
purposes of natural justice and substantial law on point, then in that case, the relevant factor to
look at would be whether there has been any effect or consequence in terms of injury or damage
to the forum state.

Analogically, when the courts impose liabilities for any damage or loss incurred, it positively
looks into the intent and motive of the inflictor which makes it conclusive to support the

3
Burger King Corp v. Rudzewicz 471 U.S. 462 (1985)
4
Zippo Manufacturing Co. v. Zippo Dot Com, Inc. 952 F. Supp. 1119 (W.D. Pa. 1997)
5
Calder v Jones 465 U.S. 783 (1984)

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argument that the ‘effect test’ is a mix of the purposeful availment approach and the sliding scale
analyses, with an addition of looking at the ultimate consequences of an internet activity.

However, one must note that the factor of the ‘ultimate consequence’ in the effect test also
comes into consideration only after it is established that the ‘interactivity’ factor is not
conclusive enough to determine jurisdiction. What can be said is that sliding scale analyses still
play a huge role in determining jurisdiction in the first instance.

INDIAN CONTEXT
The issue of Internet Jurisdiction just like the internet arrived pretty late in India at which time
most of the tests we discus today had already been established and widely publicised in the entire
world. The main reason behind the issue having reached the courts was the development of
Intellectual Property Rights (hereinafter ‘IPR’) regime in India and its subsequent violation on
internet websites.6 These inter alia were particularly dealt under Section 20 of the Civil
Procedure Code (Hereinafter ‘CPC’) along with relevant provisions of each intellectual property
legislations such as section 134 of the Trademarks Act, 1999.7

In Casio India Co. V Ashita Tele Systems Pvt. Ltd 8, the courts were of the view that simply
because a website was accessible in Delhi, the Delhi High Court had the right to invoke
jurisdiction in the matter. Further, on the question of the website being accessible at various
locations in the country the court opined that all such high courts had corresponding personal
jurisdiction. This clearly was a very inefficient approach to tackle matters involving internet
jurisdiction however it clearly established the principle that the matters involving the cyber space
were not going to be governed by the general framework of deciding jurisdiction such as
residence or place of business of the defendant, cause of action etc.

The same was reiterated in Independent News Service Pvt. Limited v. India Broadcast Live
Llc9 where at the inceptive level the court had relied on the slider scale analyses for determining
jurisdiction. They said, irrespective of the place of residence of the defendants the more
determinant factor would be the interactivity of the website and propagation of its information
and services.
6
Tata Sons Ltd. &Anr. vs Arno Palmen&Anr; 199(2013)DLT437
7
Satyam Infoway Ltd. v. Sifnet Solutions Pvt. Ltd., AIR 2004 SC 3540
8
Casio India Co. V Ashita Tele Systems Pvt. Ltd 2003 (27) PTC 265 (Del)
9
Independent News Service Pvt. Limited v. India Broadcast Live Llc And Ors; 2007 (35) PTC 177 (Del)

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Thereafter, in Banyan Tree Holding (P) Limited v. A. Murali Krishna Reddy and Anr 10,
where both the parties of the case did not belong to the territorial jurisdiction of the court, an
overall analyses was made as per laid down tests in the international regime and following
guidelines were pronounced for determining Jurisdiction:

a) “Commercial transaction must have taken place due to the website.

b) The defendant must have specifically targeted the forum state.
c) Some injury must have resulted to the plaintiff due to the actions of the defendant.
d) The plaintiff must have a presence in the forum state, and not merely the possibility of
forum state.”

This can be said to be in relation or mirroring of the precedent laid down in Calder v Jones case
whereby the three essential requirements were held as: purposeful intent of targeting the forum
state, sufficient interactivity and the effect of such interactivity to have a positive nexus with the
effect incurred.

CONCLUSION AND SUGGESTIONS

CHALLENGES
We have come across the various tests evolved to determine the issue of internet jurisdiction,
why it is important to address it along with the applicative aspect of the tests so laid down both
nationally as well as internationally. However, there still remain various gaps which need to be
worked upon. Some of them can be listed as below:

 Opposition from sovereign states: It is pretty clear that particular moralities and
ideologies of different sovereign states lead them to oppose another’s quest of punishing
a foreign national. This only becomes an addition to the otherwise still hard-to-implement
international law.

10
Banyan Tree Holding (P) Limited v. A. Murali Krishna Reddy and Anr CS (OS) No. 894/2008

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 Non- Uniform Law: Even though, there have been many tests which have been evolved,
the latest and most effective amongst them being the ‘effect test’, however, the same is
not proving to match the standard required to determine jurisdiction with confidence ,
leading to various states and their courts having their own rules and guidelines.
 Difficulty in tracing: Cyber space as a matter of territory is a very complex integrated
network. It is often difficult to trace the location of the IP provider due to which
jurisdiction gets even tougher to establish.

SUGGESTIONS

In this regard, the author attempts to humbly suggest the following measures:

 Universal conventions: Large conventions at the international scale must be conducted

to resolve the issue of internet jurisdiction at least in the signatory states. This will go a
long way in eliminating the problems arising out of this issue in specific fields as well
such as that relating to the IPR regime.
 Uniformity of Laws: Uniform laws, not only at the global but at the domestic level area
also called for. For example, even after the progressive guidelines laid down in the
banyan tree case, the courts in India have taken the regressive standing of ‘accessibility
of website’ as the determining criteria just because it ensures solicitation of business.11
 Legislative intent: The main reasons courts in India have different standings is because
they are bound by the legislative framework of the CPC. If amendments are made in the
legislation, the issue can be tackled in a much sustainable way.

11
World Wrestling Entertainment, Inc. vs. M/s. Reshma Collection &Ors

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