The Internet and Jurisdiction
The internet is seen as a new conduit for conducting commercial activities such as commerce and communication in any area of the world. Because all operations in cyberspace do not require a geographical location, the importance of the actual location of parties involved in transactions is currently declining via the web. Furthermore, the internet creates a power balance between the buyer and seller by providing the consumer with information and cyberagents about a particular product or service of interest, and makes the necessity for physical location nearly obsolete. To understand how the relationship between the internet tools and the security providers and traders obligations, there is need to understand the jurisdictional principals surrounding such endeavors. The use of the web as a business tool is increasing, and the legislators, regulators, security providers, and the courts have noticed that the power of the consumers has significantly increased as a result. The international legislation dictates that "a country is not allowed to exercise jurisdiction in cases related to the internet, but involving the non-residents of the state" (Arpita, 2012). The law poses a lot of discussions, but from a neutral point of view, it limits the power of nations and security providers with regards to control of the cyberspace. The effect is that there is an increase in cyber crimes and other internet misuse activities that cannot be easily controlled.
Background
Jurisdiction is the authority of a court to issue legislation over a contentious issue. Such authority can either be the appellate jurisdiction where one court corrects a decision made by another one or concurrent jurisdiction where two courts agree to listen to cases of the same type, coming from the same locations (Darwish, 2015). On the other hand, cyberspace is the ideal environment within which the communication through the internet takes place (Kshetri, 2013). The word gained popularity in the early 1990's when the use of the web increased abundantly with people networking and communicating through the new digital platforms, leading to expansion of the ideas and phenomena that were consistently emerging. In a simple language, cyberspace jurisdiction involves the implementation of the legislations regarding the communications that take place through the internet to ensure appropriate use. Therefore, the Cyberspace jurisdiction exists in three different categories namely Pecuniary, Subject matter, and Territorial Matter authorities (Xingan, 2015). The courts, on the other hand, can either have the jurisdiction to prescribe, adjudicate or force a ruling on the subject matter. Even though all these domains are independent, they are interrelated and based on similar principles.
Prior the advent of the internet
Prior the advent of the internet, business enterprises operating within given states could only suit the environment of such countries. On the other hand, development of the national and the international focus on some businesses was enhanced by advance assessment of the effects on the other countries or states. Together with the emergence of the Internet, came a new dimension of whether or not the location, domicile or place of business was necessary when subjecting an individual or business to a legal suit. For instance, a company with a Website enjoys the presence everywhere that the site can be assessed. Even the small businesses like the cybercafés should access the risk resulting from the use of the internet. The subjectivity to suit is affected by the physical location of the Cyber assets, maintenance of the website, the internet use. Personal jurisdiction refers to the power of a legislative institution to preside over a case involving different parties. Many courts across the globe are already evaluating the debate on whether it is necessary to exercise personal jurisdiction over cases related to the use of the cyberspace (Mills, 2014). The decisions of the courts have not been consistent though some common themes are already appearing in the judgments (Kshetri, 2013). For instance, Article 22 of the Convention on Cybercrime provides a regulation regarding cyberspace related jurisdiction. The Article restricts courts to the establishment of authorities, only when the offense is committed within the party's territory, while on board in a ship or aircraft entitled to the party's flag, or if the offense committed is punishable in the nation of one of the parties involved (Arpita, 2012).
Inadequacies
Internet crimes are difficult to control since they can come from anywhere provided that the Website is accessible. For the prosecution of cyber crimes, it follows that the activity is traced through many national borders (Darwish, 2015). The unfortunate bit is also that the service providers are spread over different jurisdictions, making the application of Article 22 of COE even harder to implement. Also, studies by Xingan (2015) also indicated that the various countries across the globe lack focus towards computer crime. Even though the international organizations like COE have made significant progress towards coming up with universal conventions to govern the use of the internet, it is apparent that many differences exist across different national laws, thus limiting the coercive powers of the investigative bodies set up by the international conventions.
Adequacies
Even though the implementation of the Article 22 of the COE has posed challenges, it cannot go without saying that the agreement has provided cutting edge interventions towards controlling the content of the cyberspace. The law provides a foundation upon which other countries can make their legislations to provide litigations over the cyber crimes. The law regarding the territory of application also provides for the application of the law only in cases where the substantive legislations of the forum country do not contradict its provisions (Mills, 2014).
Proposed changes
Many suggestions have been put forward to create an amendment to the article 22 of the COE through a multilateral convention, with the argument basis on the fact that cyberspace crimes exploit and weaken the laws and implementation of the national legislation (Arpita, 2012). The consequence of such eventualities is that the States are exposed to risks beyond their capacity to control. However, managing the Cyberspace crimes require prearranged and internationally agreed procedures that can enhance investigation and response to threats and attacks. The multilateral amendment to the COE laws will ensure that every country adopts legislation that is not restricted to territories and the legislative procedures that expedite prosecutions by other states, without necessarily taking into consideration the regional boundaries. Such laws will not only inflict fear on the cyber criminals but will also ensure that investigations are very easy to carry out across the international borders.
Conclusion
The courts have perpetually used traditional tests like the international minimum contact test to determine personal jurisdiction over a litigant with multiple nationalities. Nonetheless, these tests have been rendered outdated in the wake of Internet utility. The Internet's unique aspects such as the ability of users to maintain anonymity and ease of long distance interaction have complicated the traditional methods of personal jurisdiction analysis. However, determining cyberspace jurisdiction insists on the application of the existing rules. Any organization setting up a website on the internet is obliged to remain aware that the site is accessible by customers and individual across the world, some of whom may be tempted to perform criminal acts on the Websites. Therefore, any operation on the cyberspace is subject to foreign laws and international conventions which can be exposed to jurisdictions in foreign countries.
References
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Arpita, M. (2012). Cyber Crime and the Police: Insinuations to the Police Commissionerate of Bhubaneswar and Cuttack. ODISHA REVIEW, p. 52.
Darwish, A. (2015). In Cybercrime, Digital Forensics and Jurisdiction. In C. Mohamed, M. A. Khan, & S. Tyagi, 419 scams: an evaluation of cybercrime and criminal code in Nigeria (pp. 129-144). Springer International Publishing.
Kshetri, N. (2013). Cybercrime and Cybersecurity in the Global South: Status, Drivers, and Trends. Cybercrime and Cybersecurity in Global South, 1-29.
Mills, A. (2014). Rethinking Jurisdiction in International Law. The British Year Book of International Law, 84 (1), 187.
Xingan, L. (2015). A phenomenal exploration into the impact of anonymity on law and order in cyberspace. Kriminologija i socijalna integracija , 22 (2), 102-123.
