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CYBER JURISDICTION IN INDIA

CYBER JURISDICTION IN INDIA[1]


Jurisdiction means the authority which a court has to decide matters that are
litigated before it or to take cognizance if matters are presented in a formal
way for its decisions, it could be said that it is the power/authority of the
court to decide matters that are brought before him. In this context,
jurisdiction over activities on the Internet has become a battleground for the
struggle to establish Rule of Law in the Information Society.[2] The rise of the
global computer network is destroying the link between geographical
location and:
1)
The power of local governments to assert control over online behavior;
2)

The effects of online behavior on individuals or things;

3)
The legitimacy of the efforts of a local sovereign to enforce rules
applicable to global phenomena; and
4)
The ability of physical location to give notice of which sets of rules to
apply.
The net thus radically subverts a system of rule-making based on borders
between physical spaces, at least with respect to the claim that cyberspace
should naturally be governed by territorially defined rules.[3]
The Internet explosion has generated many jurisdictional disputes, putting
the onus on courts to determine how to apply historic concepts regarding
personal jurisdiction to the boundary-less world of the Internet. With so many
outsourcing activities in India and the popularity of networking websites, a
fresh continuum of cases related to Personal Victimization and Economic
Offences in the nature of data protection, cyber defamation, security, etc

have evolved. Hacking initiated at one place adversely affects any other
place/institution and brings them to limbo.
Relevant Legislations:
1)
Information Technology Act, 2000: Section 75 of the Act implies
that the Act shall apply to an offence or contravention committed outside
India by any person if the act or conduct constituting the offence involves a
computer, computer system or computer network located in India.
2)
Indian Penal Code, 1860: Section 3 and 4 of the Act deals with the
extra-jurisdictional power given to the Indian Courts.[4]
3)
Code of Criminal Procedure, 1973: -Section 188provides that even
if a citizen of India outside the country commits the offence, the same is
subject to the jurisdiction of courts in India. In India, jurisdiction in
cyberspace is similar to jurisdiction as that relating to traditional crimes and
the concept of subjective territoriality will prevail. Moreover Section 178
deals with the crime or part of it committed in India and Section 179 deals
with the consequences of crime in Indian Territory.[5]
In a leading case of cyber crime, SMC Pneumatics (India) Pvt. Ltd. v. Jogesh
Kwatra [6], Indias first case of cyber defamation, High Court of Delhi
assumed jurisdiction over a matter where a corporates reputation was being
defamed through e-mails, and passed an important ex-parte injunction. The
concept of consequence and cause of action extends jurisdiction but a
conflicting situation arises where there is no defined regulation at one of the
places. For example, the Act does not provide any provision to catch the
internet pornography on foreign websites but only for sites in India.
The Supreme Court of India, in the case of SIL Import v. Exim Aides Silk
Importers[7] has recognized the need of the judiciary to interpret a statute
by making allowances for any relevant technological change that has
occurred. Until there is specific legislation in regard to the jurisdiction of the
Indian Courts with respect to Internet disputes, or unless India is a signatory
to an International Treaty under which the jurisdiction of the national courts
and the circumstances under which they can be exercised are spelt out, the
Indian Courts will have to give a wide interpretation to the existing statutes,
for exercising Internet disputes.
Conclusion

In the present scenario where the cyber crimes are increasing to an alarming
extent, the present need of the hour is to have broad based convention
dealing with criminal substantive law matters, criminal procedural questions
as well as with international criminal law procedures and agreements. The IT
Act, 2000 would be crippled without proper means and ways of implementing
it. To overcome the difficulties, necessary amendments must be made to The
Code of Criminal Procedure, 1973. Moreover, it is important to note that India
at present does not have a proper extradition law to deal with crimes that
have been committed over the Internet. To address this issue, India should
become a signatory to the Convention of cyber crimes treaty and should
ratify it. This move would go a great deal in resolving the jurisdictional
controversies that may arise in cyber crime cases.

[1] Saurabh Anand, National Law School of India University (NLSIU),


Bangalore.
[2] Reidenberg, R. Joel, Lex Informatica: The Formulation of Information Policy
Rules Through Technology, 76 Texas Law Review p553, 554-55 (1998)
[3] Katsh Ethan M, The Electronic Media and The Transformation of Law (New
York, Oxford University Press, 1989) p 92-94; Katsh Ethan M, In a Digital
World (New York: Oxford University Press, 1995) p 57-59, 218
[4] Section 3 and 4 of Indian Penal Code, 1860
[5] Section 178, 179 and 188 of Code of Criminal Procedure, 1973.
[6] Being Suit No. 1279/2001 available
at http://cyberlaws.net/cyberindia/defamation.htm(Accessed on 25th Sept,
12 at 16:30 hrs)
[7] (1999) 4 SCC 567
Trademark versus Domain Name Dispute

25WednesdayJUL 2012
POSTED

BY LEXWISDOM IN

UNCATEGORIZED
LEAVE

What is a domain Name?

A COMMENT

A domain name is part of e-mail address or home page address which comes
after the @ and www respectively. A common domain name is read from the
right to the left. The letters appearing on the extreme right are called Top
Level Domains (TLDs) such as .co. in or .uk, .au, etc and immediate part next
to the TLD is known as Second Level Domain (SLDs) and it is that part for
which the registration is sought and each user applying for the registration is
given a unique name which can be used in the correspondence with the
transacting and interested parties in the day to day business life.
What is a trademark?
A Trademark is usually the name along with or not some graphical
representation or sign of a product which is used in the due course of the
business. It is because of the trademark that buying public is able to
recognize a particular product in the market and its origin as well, therefore
not to mention the goodwill of a product is attached to its trademark.
Therefore if another person uses ones trademark on his own product so as
to suggest or represent that those good belong to person who usually sells
the product under same trademark then there is obvious loss of goodwill and
reputation of the original person as there is likelihood that another person
may sell inferior quality products under the grab of the alleged trademark
usage.
Where lies the controversy?
In the current scenario the e-commerce is growing at an exponential rate
which has led to the development of a parallel market in the cyberspace
where the goods though are not physically present but can very well be
demonstrated over the web address of the domain name holder and the
buyers according to their choices can place their order accordingly and this is
where is problem central to the dispute of confusing similarity between ones
trademark and anothers similar domain name lies.
What is the Controversy?
There will be concerns when take for example a particular domain name is
allocated to the user A containing the words of the user B, now if As
business is entirely different from B there wont be any problem of passing of
/infringement but problem will arise when A is in the same business. In such

a situation instead of being directed to the website of the legitimate owner of


the name, a user may be diverted to the website of the unauthorized user of
a similar or identical name (Supreme Court of India in Satyam Infoway
Ltd. Vs Sifynet Solutions Pvt. Ltd.). Therefore, there will be confusing
similarity between the identical or similar domain names and the trademarks
belonging to the same business.
Conclusion
Supreme Court of India in Satyam Infoway Ltd. Vs Sifynet Solutions
Pvt. Ltd. has affirmed that a domain name has all the properties and
features of a trademark and till any law is not passed exclusively
for the domain names, the law of trademark shall be applicable to the
domain names, where either party has to adduce the evidence for showing
the balance of convenience in their favour.