Introduction:
It is almost an unfortunate fate mankind has when it comes to innovations, which were originally designed for the welfare of the human race, fall into the grasps of those who use them to indulge in illegal activities and harm other people. The invention of the Computer and the Internet brought a revolution of changes in the technological world. Yet, if they can bring ease in life in ways one can’t even imagine, at the same time they can also harm an individual in ways that shouldn’t be imagined. People can transcend physical borders without ever leaving their homes or places of business or revealing their identity. The majority of the people do not fully understand the implications and consequences of being in a borderless, technological forum. As a result, they lack awareness about which laws and jurisdictions may govern their activity.
Jurisdiction is a legal concept that defines the limits to the application of a country’s laws, administration, and sovereignty. Although jurisdiction is a part of sovereignty, it isn’t coextensive with it. The laws of a country may have the extra-regional effect, broadening the jurisdiction past the sovereign and regional cutoff points of that country. This is especially dangerous as the mode of the Internet doesn’t expressly perceive sovereignty and territorial impediments. There is no uniform, global jurisdictional law of universal application, and such inquiries are for the most part viewed as an issue of contention of laws or private international law. To represent, the information of a web site might be lawful in one country and illicit in another.
Without a uniform jurisdictional code, legal practitioners are for the most part left with a conflict of law. Courts must decide whether to address these violations under the traditional doctrines of personal jurisdiction[1] or to create a virtual body of law to deal with infractions that occur in a “fictional” place. The issue of personal jurisdiction has been the most debated and has been a focal point of the whole globe. Without a particular lawful structure for cyberspace, much dependence is put on judicial pronouncements of different nations that have built up the idea of ‘Internet Jurisdiction’.
Personal Jurisdiction in The United States of America
The concept of ‘personal jurisdiction’ originates from the U.S. It has evolved over a period of time and case laws wherein the courts exercised this term. It has existed since before the era of the Internet. Traditionally, it meant that the laws of the country are applicable provided the party is present within its territory. In Pennoyer v. Neff,[2] the U.S. Supreme Court held that the due process clause of the Constitution constrains the states in the exercise of personal jurisdiction over non-residents, further observed that (1) “Every State possess exclusive jurisdiction and sovereignty over persons and property within its territory”; (2) “no State can exercise direct jurisdiction and authority over persons or property without its territory.”[3] However, the traditional notions needed to be changed while applying to the internet world.
In the U.S., the idea of personal jurisdiction and fairness, and due process were not meeting ends traditionally. Non-residents could be brought to court while they were in State, anyway accidental or brief presence it may be[4]. With the International Shoe v. Washington[5], current jurisdictional investigations stepped in, assimilating Fair play and substantial justice in practicing personal jurisdiction by courts. Fusing the soul standings of the Fourth and Fifteenth Amendments to the United States Constitution that state the provisions on substantive due process and procedural due process, the central significance of due process of law is to ensure the principle of legality by guaranteeing that executive and judicial deprivations are grounded in substantial lawful authority. For this situation, a suit to recuperate installments because of the unemployment reserve by a Corporation that didn’t have an office or shop in the State was addressed based on personal jurisdiction. Administration of endless supply of the partnership’s sales reps inside the State, and notice being sent by enlisted mail to the company at its home office was tested as not fulfilling the necessities of due process.
The Supreme Court of Washington was of assessment that the ordinary and efficient solicitation of orders in the state by appellant’s salesmen, bringing about a consistent progression of appellant’s product into the state, was adequate to establish business being conducted in the state to make appellant manageable to suit in its courts.
Earlier, it was a prerequisite to establishing the presence of the parties within territorial jurisdictions to pass a judgment binding them personally.[6] Later the position built up that due process needed just that, in order to make the defendant personally liable to the judgment. If he is absent from the territory, he must have certain ‘minimum contacts’ within the territory such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice”[7]. It was held in the International Shoe case that, to the degree that a corporation reaps the benefits of conducting business within the territory, it also enjoys the protections of laws of the State and, consequently, it also is limited to the obligations arising out of these laws which abide the Corporation to respond to a suit.
In Zippo Manufacturing Co. V. Zippo Dot Com, Inc[8] an appropriate examination of the nature and quality of commercial activities of a website was done while determining its jurisdiction. This case introduced the ‘sliding scale analysis’, based on passive, active, and interactive websites. The court held that websites that allow parties to enter into contracts contemplating business, may include them within personal jurisdiction. This effect evolved by the Supreme Court in Calder V. Jones[9]. The effect test is applied where action is targeted at a particular forum though deficient interactivity or minimum contacts. In other words, the effect test can be utilized to analyze the specific nature of a Defendant’s Internet activities to decide if its out-of-state activities were aimed at parties or entities inside the state. It was further held that,
“purposeful direction requires (a) an intentional action that was (b) expressly aimed at the forum state, with (c) knowledge that the brunt of the injury would be felt in the forum state. If a court finds that a Defendant’s actions meet the standard of purposeful direction, personal jurisdiction may be asserted based on Internet activities that do not meet the requisite level of interactivity or minimum contacts needed for other tests of personal jurisdiction in Internet cases.”
Summing up the situation in the U.S., in order to establish personal jurisdiction of the Court, despite existing long-arm statutes and effects tests proved, the plaintiff needs to prove that they were “specifically targeted” by the defendant.
Personal Jurisdiction in India
The tests propounded by the U.S. Courts have been referred by many courts across the world. Indian Courts have also considered these theories while determining Personal Jurisdiction, being mindful of the main provision, section 20 of the Civil Procedure Code and Section 137 of the Trade Mark Act considering the domain name of websites within the ambit of ‘Intellectual Property’.[10]
In India, Casio India Co. V. Ashita Tele Systems Pvt. Ltd.[11] was the first case to address the question of personal jurisdiction. In this case, the court passed an injunction order against the defendant from using the website www.casioindia.com based on the fact that the website could be accessed from Delhi. This alone is sufficient to bring the case within the territorial jurisdiction of the Court. The High Court of Delhi held that the mere ability to access the website gave the court territorial jurisdiction to decide on the matter at hand. In 2007, the Delhi High Court justified its ruling using U.S. court rulings that, where the website is an interactive one, having a target audience in another place, the court of those places has the jurisdiction of a dispute arising from that website activities, irrespective of the place of the defendant.[12]
This case set the precedent for future cases, clarifying the position of Indian courts in matters pertaining to personal jurisdiction in cyberspace. It was further expanded through the case of Banyan Tree Holding (P) Limited v. A. Murali Krishna Reddy and Anr.[13] The most amusing fact of the case was that both the parties of the case were not residing within the territorial jurisdiction of the Court but the websites of both the parties were accessible in Delhi. In this case, the Court deferred from the view on Casio India Co. case and held that mere accessibility of a website in Delhi is not sufficient to provoke jurisdiction by the Delhi Court. It relied on the U.S. precedent case ruling that the plaintiff needs to prove before the court that the website was directed towards the plaintiff within the territorial jurisdiction, which leads to damage or injury to the plaintiff. The court also concluded the law of determining jurisdiction over the internet on the following conditions:
- Commercial transactions must have taken place due to the website.
- The defendant must have specifically targeted the forum state.
- Some injury must have resulted to the plaintiff due to the actions of the defendant.
- The plaintiff must have a presence in the forum state, and not merely the possibility of forum state.
The High Court of Delhi cleared the position of determining Internet jurisdiction in World Wrestling Entertainment, Inc. vs. M/s. Reshma Collection &Ors[14], where it held that mere accessibility of a website in a forum state which ‘solicits’ its business, through which Defendant’s goods and services are sold, is enough to raise the cause of action and in determining the personal jurisdiction in Delhi[15]. The same was reiterated in Choice Hotels International Inc. v. M. Sanjay Kumar and Ors[16] by the single judge bench in the High Court of Delhi.
Conclusion
The matter of personal jurisdiction has always been challenging for courts dealing with both matters related to cyberspace and otherwise. Yet, the Indian Courts have had an open-minded approach towards matters of personal jurisdiction in cyberspace, by referring to various case laws globally. Through investigation of plenty of case laws, we can see that Indian Courts have found the middle path between the core jurisdiction laws in the country, i.e. section 19 and 20 of the Civil Procedure Code, for deciding personal jurisdiction of courts. It is understood that the mere fact that a website can be accessed from within territorial boundaries does invoke personal jurisdiction, even if the website was established for commercial purposes only. In this way, the Indian courts recognize the effect tests laid down by the U.S. court in the Calder Case. But, following the U.S. effects tests or other tests available globally without having any particular guidelines or laws will leave these theories of deciding jurisdiction helpless.
References:
[1] Bensusan Restaurant Corp. v. King, 126 F.3d 25 (2d Cir. 1997).
[2] 95 U.S. 714 (1877)
[3] “Jurisdiction in the Cyberspace.” LawTeacher.net. 11 2013. All Answers Ltd. 02 2021 <https://www.lawteacher.net/free-law-essays/commercial-law/jurisdiction-in-the-cyberspace-commercial-law-essay.php?vref=1>.
[4] Burnham v. Superior Court, 495 U.S. 604 (1990)
[5] 326 U.S. 310, 1945
[6] Supra Note 2.
[7] Milliken v. Meyer, 311 U. S. 457, 311 U. S. 463
[8] 952 F. Supp. 1119 (W.D. Pa. 1997)
[9] 465 U.S. 783 (1984)
[10] Satyam Infoway Ltd. v. Sifynet Solutions Pvt. Ltd., AIR 2004 SC 3540; Tata Sons Ltd. & Anr. vs Arno Palmen & Anr; 199(2013)DLT437
[11] 2003 (27) PTC 265 (Del)
[12] Independent News Service Pvt. Limited v. India Broadcast Live Llc And Ors; 2007 (35) PTC 177 (Del)
[13] CS (OS) No. 894/2008
[14] 2014 (60) PTC 452 (Del)
[15] World Wrestling Entertainment, Inc. vs. M/s. Reshma Collection &Ors; “that it “carries on business” in Delhi because, according to it, its programmes are broadcast in Delhi; its merchandise and books are available for sale in Delhi; and its goods and services are sold to customers in Delhi through its website which can be accessed in Delhi over the internet.” (para 12)
[16] I.A. No.2402/2010 in CS(OS) 332/2010
Other Sources:
- http://docs.manupatra.in/newsline/articles/Upload/07D8E605-DE8C-435E-A7D5-16508E156554.pdf
- https://www.iiprd.com/the-question-of-internet-jurisdiction/
- https://ujala.uk.gov.in/files/ch3.pdf
- https://corporate.findlaw.com/law-library/jurisdiction-in-cyberspace.html
- https://scholarship.law.edu/cgi/viewcontent.cgi?article=1142&context=commlaw
- https://www.mondaq.com/india/contracts-and-commercial-law/262030/minimum-contact-theory
- https://www.lawteacher.net/free-law-essays/commercial-law/jurisdiction-in-the-cyberspace-commercial-law-essay.php#ftn13
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