IT LAW NOTES

Module 2 – Jurisdictional Issues of Cyberspace

Cyberspace is a concept of recent origin, evolving every day with the development of
sophisticated technology in the form of software and hardware.
Jurisdiction- Power or authority of a court to adjudicate a s case.
Categories –
- Subject Matter Jurisdiction: The authority of a court to hear and decide a particular dispute
before it.
- Personal Jurisdiction: The authority of a court to hear and decide a dispute involving the
particular parties before it. Personal jurisdiction may be further classified into 2 types-
1. General Jurisdiction – The general jurisdiction subjects a person to the power of the
applicable court with respect to any cause of action that might be brought. It has
historically relied on very close contacts of the person with the State, such as residency
or domicile within the State, physical presence within the State at the time, or some
other substantial “continuous and systematic” contact with the forum state.
2. Specific Jurisdiction – The specific jurisdiction refers to the power of the applicable
court with respect to a particular cause of action based upon some set of “minimum
contacts” with the forum state that relate to that cause of action.
- Pecuniary Jurisdiction

3 Pre-requisites to exercise jurisdiction:

- Jurisdiction to Prescribe
This type of jurisdiction enables a country to impose laws, particularly for a person’s
activity, status, circumstances, or choice. This jurisdiction is unlimited. Hence, a country
can enact any law or legislation on any matter, even where the person’s nationality is
different or the act happened at a different place. However, International law prevents any
state from legislating any such law contrary to other countries’ interests.

- Jurisdiction to Adjudicate
Under this jurisdiction, the state has the power to decide the matter on a person concerned
in civil or criminal cases despite the fact that the state was a party or not; a mere relationship
 between both is sufficient. It is not necessary that a state having the prescribed jurisdiction
must also have jurisdiction to adjudicate.

- Jurisdiction to Enforce
This jurisdiction depends on the existence of prescriptive jurisdiction; hence if prescriptive
jurisdiction is absent, then it cannot be enforced to punish a person violating its laws and
regulations; however, this jurisdiction is not exercised in an absolute sense and a state
cannot enforce its jurisdiction on a person or the crime situated or happened in a different
country.

Theories on Jurisdiction to Prescribe:

1. Subjective Territoriality
It lays down that if the act is committed in the territories of the forum state, then its laws
will be applicable to the parties. The act of the non-resident person in the forum state is
the key element under it. For example- A country can make a law criminalizing an act in
its territory, and then the subject aspect of the territoriality will recognize it.

2. Objective Territoriality – Effects Jurisdiction

It is invoked when an act is committed outside the forum state’s territorial boundary, yet
its impact is on the forum state. It is also known as ‘Effect Jurisdiction.’ It was established
in the case of United States v Thomas in which the defendant published phonographic
material and to see and download it, he provided the subscribers with a password after
getting a form filled out which included their personal details, and the plaintiff claimed it
to be violative of its domestic laws, the court held that “the effect of the defendant’s
criminal conduct reached the Western District of Tennessee, and that district was suitable
for accurate fact-finding,” and the court has the cyberspace jurisdiction.

3. Nationality
It is applied to the offender who is the national of the state; for example, if a person of a
state commits an offence in a foreign country that is punishable by domestic laws, then the
state has the power to punish its citizens.
India would have the right to regulate the conduct of all Indians irrespective of where they
are placed. This is called active nationality theory. This is in line with the settled principle
 of extra-territorial application of criminal laws. When the victim’s nationality is considered
and used to exercise jurisdiction, we call it passive nationality. (Nottebohn case)

4. Protective Principles
As the term suggests, this principle comes into play where the security of any state is
endangered by the act of any foreign national. According to the principle, a state has
jurisdiction in respect of “certain conduct outside its territory by persons that directed
against the security of the state or against a limited class of other state interests.”
Examples include cyber espionage, counterfeiting and falsification of official documents
etc.

5. Universality
The acts which are universally acclaimed as crimes such as hijack, and child pornography.
A cyber-criminal can be convicted in any country for committing such a heinous crime. It
presumes that the country has cyber jurisdiction to prosecute the offender of a cybercrime.

Nottebohn Case (Liechtenstein v. Guatemala)

Facts.
Nottebohn (P), a German by birth, lived in Guatemala (D) for 34 years, retaining his German
citizenship and family and business ties with it. He however applied for Liechtenstein (P)
citizenship a month after the outbreak of World War II. Nottebohm (P) had no ties with
Liechtenstein but intended to remain in Guatemala. The naturalization application was approved
by Liechtenstein and impliedly waived its three-year. After this approval, Nottebohm (P) travelled
to Liechtenstein and upon his return to Guatemala (D), he was refused entry because he was
deemed to be a German citizen. His Liechtenstein citizenship was not honored. Liechtenstein (P)
thereby filed a suit before the International Court to compel Guatemala (D) to recognize him as
one of its national. Guatemala (D) challenged the validity of Nottebohm’s (P) citizenship, the right
of Liechtenstein (P) to bring the action and alleged its belief that Nottebohm (P) remained a
German national.

Issue.
Must nationality be disregarded by other states where it is clear that it was a mere device since the
nationality conferred on a party is normally the concern of that nation?
Held.
NO. issues relating to citizenship are solely the concern of the granting nation. This is the general
rule. But it does not mean that other states will automatically accept the conferring state’s
designation unless it has acted in conformity with the general aim of forging a genuine bond
between it and its national aim. In this case, there was no relationship between Liechtenstein (P)
and Nottebohm (P). The change of nationality was merely a subterfuge mandated by the war.
Under this circumstance, Guatemala (D) was not forced to recognize it. Dismissed.

Problems with the Assertion of Prescriptive Jurisdiction over Internet Activity

The Locus Problem: Determining Location for Subjective Territoriality Jurisdiction
- Viewer Location
- Author/Creator Location
- Server Location
- Localisation of Website

Jurisdictional Theories – Conflict of Law

1. Lex Loci Deliciti – Law of the place of the wrong
2. Lex Situ – Law of the place where subject-matter/property is situated
3. Lex Patriae – Law of Nationality
4. Lex Domicile – Law of Domicile

Passive v. Interactive Websites

Relevant for the effects jurisdiction. Passive is one where the website does nothing else but only
provides some information for you to retrieve. An active website goes beyond the purpose of
supplying information and also engages in selling products and providing additional services.
The question of ‘intent’ is of utmost importance here. Now, whose intent do you see here? The
viewer’s or the publisher’s? There’s no straight answer but courts (USA) have evolved the test of
interactivity, which is also known as the minimum contact test.

Cases on Jurisdictional Issues

1. CompuServe Inc. v. Patterson (1996)
CompuServe information service (CompuServe) is located in Columbus, Ohio, but
CompuServe and its parent company H&R Block both have divisions in Texas.
CompuServe consists of a computer information network which is navigated using special
software. A user of CompuServe accesses the Columbus, Ohio computers via ordinary
telephone lines by dialing a local access number and connecting to a local system which is
linked to the Ohio system over a closed network. Users of CompuServe pay both a
monthly subscription fee and an hourly usage fee in return for accessing the system.
CompuServe users are also able to distribute "shareware" over the network. Under the
shareware system, a user is granted a limited license which allows him or her to use the
software for a limited period of time for free. Under a shareware license, copying and
distribution of the software by a user is unrestricted provided that the program remains in
its original format.
Prior to 1991, Richard Patterson began distributing his WinNav software, a product which
allowed P.C. users to execute, view and manage files and directories on their computers.
Between 1991 and 1994 Patterson electronically sent ("uploaded") various versions of his
shareware programs from his home in Houston, Texas to CompuServe. The programs
were stored by CompuServe's computers in Ohio and advertised on CompuServe's system.
In late 1993 or early 1994, Patterson entered into the SRA with CompuServe. According
to the Sixth Circuit, Patterson's software was sold through the CompuServe's SRA, $650
of which was sold to twelve residents of Ohio. The suit arose in late 1993 or early 1994
because Patterson alleged that the name of the software developed by CompuServe
("Windows Navigator") infringed on Patterson's common-law trademark names of his
software: "WinNav," "Windows Navigator," and "FlashPoint Windows Navigator."
After Patterson informed CompuServe of the possible infringements, CompuServe
brought a diversity action for specific performance in Ohio's Southern District Court.
Patterson responded pro se with a consolidated motion to dismiss the complaint for lack
of personal jurisdiction. The district court granted Patterson's motion, denied
CompuServe's motion for a rehearing, and CompuServe appealed

Held-
The United States Court of Appeals for the Sixth Circuit held in this case of first
impression that (1) Patterson purposefully availed himself of the benefits of doing business
 in CompuServe's home state of Ohio; (2) that the action arose from Patterson's contacts
with Ohio; and (3) that the exercise of jurisdiction was reasonable.

**In this case, personal jurisdiction was deemed to be proper because the defendant was
determined by the court to have been conducting commercial activities through the
website in Ohio.

2. Yahoo Inc v. UEJF and LICRA (2001)

This case is the US follow-on litigation to a French court’s order, in 2000, for US search
engine and portal Yahoo to restrict access to Nazi memorabilia auctions and materials.
Yahoo maintained that the French order was improper but also adopted a new, allegedly
voluntary, global policy largely complying with it. French plaintiffs represented that they
were happy with Yahoo’s compliance and would not seek further enforcement. However,
Yahoo filed suit in the U.S. District Court (N.D. Cal.) for declaratory judgment that the
French Court's order was not recognizable or enforceable in the U.S. In two lower court
rulings, the District Court determined that it had jurisdiction over the case and that the
First Amendment precluded US enforcement. The Ninth Circuit Court of Appeals
reviewed the ruling and then ruled a second time en banc. The en banc decision, which
was the final decision in the case, was divided and procedurally complex. Out of eleven
judges,
- 8 judges found Personal Jurisdiction
- 3 Judges would dismiss for lack of Personal Jurisdiction-
3 Judges would dismiss for lack of Ripeness
This created a 6-judge majority favouring dismissal, though on different grounds. the court
held that jurisdiction could be exercised in California over French civil rights
groups under French hate laws.
The case was accordingly dismissed. Yahoo sought a Supreme Court review but was
denied. The 8-judge ruling in favour of personal jurisdiction, however, officially has
precedential value.

3. LeGrand Secret Case – Editions Plon v. France (2004)

- Biography of former Prez published in France- govt banned and asked to destroy all copies
- One internet café owner made his own copy and forwarded to US Servers before it was
removed
 - Can the family of the author have full autonomy on content like this?
- This edition was restricted from being viewed but it showed as a response on search engine
- 1st amendment came into picture
- lastly website was closed due to potential legal action
- US v France jurisdiction issue
4. Equustek Solutions v. Google Inc. (2014)
- Curbs in China on Google being used as a search engine
- Lead to revenue loss for Google – tried negotiation
- But no criminal charges
- Even if cyberspace is borderless, countries do exercise their sovereignty over platforms

Tests to Determine Personal Jurisdiction:

1. Long Arm Statute
It typically talks about how a country can extend its jurisdiction beyond its residents to
non-residents. Certain prerequisites are to be satisfied for a court to do so. These are-
- If a non-resident conducts business or enters into a contract in the forum state
- If a non-resident commits a tortuous act within the forum state’s territory
- If a non-resident commits a tortuous act outside the forum state’s territory but causes
injury to a person within the forum state
- If a non-resident owns or possesses a property within the forum state
Case- Swami Ramdev & Anr. v. Facebook Inc & Ors.
This case dealt with the book “Godman to Tycoon”. The book allegedly contained defamatory
material. The matter went to HC.
On the issue of extra-territoriality, as envisaged in the Information Technology Act, 2000, the
Court held that intermediaries have to remove or disable access to the material/information
‘residing in or connected to a computer resource,’ i.e. network.
A reading of the terms ‘computer resource’ under Section 2(k) with Section 79(3)(b) of the Act
requires that in instances where “information or data has been uploaded on a computer network,
the platforms would be bound to remove it and disable it from that computer network completely.
The intermediaries are obliged to ‘disable access of all kinds’ [para. 83] including disabling access
to viewers not only from India but also global viewers. Therefore, mere geo-blocking as suggested
by the Defendants was not in consonance with Section 79 of the Act and would be against the
purport and intent of the Supreme Court’s decision in Shreya Singhal.
Thus, the Court held that a global blocking order was necessary as any content uploaded in India,
would also be accessible to users and viewers across the globe. Further, the Information
Technology Act is premised on long-arm jurisdiction therefore, Indian courts had the power to
pass global injunctions.

2. Minimum Contacts Test

The Minimum Contact theory comes into the picture when either or both of the parties
seem to be from outside the Court's territorial jurisdiction. It is used as a method to
establish the Court's jurisdiction over the parties to a case by determining the quality and
intensity of their contact i.e. services or transactions with the Forum State. The minimum
contact rule establishes that so long as a corporation has a degree of contact within the
state bringing suit, they are subject to the laws of the state and can be sued by and within
the forum state in court. Examples of minimum contacts include conducting business
within the state, incorporating in the state, and visiting the state.
The theory was laid down in a landmark case i.e. International Shoe Co. v. Washington,
326 U.S. 310 (1945). There was a landmark decision of the Supreme Court of the United
States in which the Court held that a party, particularly a corporation, may be subject to
the jurisdiction of a state court if it has "minimum contacts" with that state. The ruling has
important consequences for corporations involved in interstate commerce. It was held
that: Suit cannot be brought against an individual unless they have minimum contacts with
the forum state.
Following International Shoe, courts have generally applied a three-part test in evaluating
minimum contacts sufficient for jurisdiction:
(1) The non-resident defendant must do some act or consummate some transaction with
the forum or perform some act by which he purposefully avails himself of the privilege of
conducting activities in the forum, thereby invoking the benefits and protections.
(2) the claim must be one which arises out of or results from the defendant's forum-related
activities; and
(3) exercise of jurisdiction must be reasonable.

3. General and Specific Jurisdiction

General:
- Continuous and systematic contact with the forum state
Specific:
 - Substantial contact
- Purposeful availment of privilege in the forum state
- The cause of action arose due to the non-resident’s act/conduct within the forum state

Cases-
1. Cybercsell Inc v. Cybersell Inc and Ors.
The Court laid down three criteria- “The non-resident defendant must do some act or
consummate some transaction with the forum or perform some act by which he
purposefully avails himself of the privilege of conducting activities in the forum,
thereby invoking the benefits and protections. The claim must be one which arises out of
or results from the defendant’s forum-related activities, and exercise of jurisdiction must
be reasonable.”
Critics – This approach taken by the court is a narrow approach as almost every website
is interactive, and therefore categorising them is difficult.

2. Burger King Corp. v. Rudzewicz

 3. Zippo Manufacturing v. [Link] (Sliding Scale Theory)
Sliding Scale theory is also known as the Zippo Test. It is the most accepted test in deciding
personal jurisdiction in cyberspace cases. On the basis of the interactivity of the websites,
the jurisdiction is decided. The more the number of interactivities, the more the courts
have personal jurisdiction over it in the forum state.

For a passive website, the courts have almost no jurisdiction, while in the middle spectrum
site, the court may or may not have jurisdiction; however, in the case of a highly interactive
site, the court has cyberspace jurisdiction.

In the landmark case of Zippo Manufacturer v [Link], the plaintiff Zippo

Manufacturer of lighters in Pennsylvania sued the defendant [Link] for an infringing
trademark. The defendant had a lot of interactivity; hence the personal jurisdiction will be
applicable to the defendant.

4. Calder v. Jones (Effect Test or Calder Effect Test)

Few conditions are required to be satisfied for the Effect test, mainly the action taken
expressly against the forum state with the knowledge and intention that it will injure the
state. If the court thinks fit that the defendant’s action caused injuries to the forum state,
then personal cyberspace jurisdiction is asserted in cyberspace cases where no contact is
present.

In the landmark case of Calder v Jones, The Supreme Court of the US observed that the
court in the state can exercise personal jurisdiction over non-residents. In this case, the
editor and writer of a national magazine published a defamatory article on the residents.
The facts of the case are that the plaintiff Shirley Jones sued the distributor, the writer, and
its editor Calder of a national magazine, defaming her as an alcoholic. Jones was a resident
of California while the article was written and edited in Florida. Jones sued the defendants
in the court of California because the magazine had a vast circulation in the state. The
court held that the court of California has personal jurisdiction over the defendants.

Targeted Approach
Now, we presently follow the targeted approach. This approach entails that the primary target
country gets to exercise jurisdiction.
a. British India Steam Navigation Co Ltd v SV Cashew Industries
b. Skype Technologies v Joltid Ltd
• The case highlighted the importance of adhering strictly to the terms of a
software licensing agreement. If a licensee (Skype) makes unauthorized
changes to the software, it can lead to termination of the agreement and
significant legal consequences.
c. NTPC v Singer Co.
• The Court determined that Indian courts had jurisdiction in matters related
to the arbitration because the contract was closely tied to India. Even
though the arbitration was held abroad, Indian law governed the substance
of the contract. This set a precedent for cases where contracts involving
foreign arbitration could still be subject to Indian jurisdiction based on the
proper law of the contract.
d. Bharat Aluminium Co v Kesar Aluminium Technical Service Inc
e. People v World Interactive Gambling
- WIG is an online Gambling Platform targeted for NY- thus jurisdiction of
NY
- Criminal cases generally have an intended target
- India majorly follows a targeted approach these days- Lex Fori approach
followed- law of land stretched/ extended to cyberspace
- Specific jurisdiction in cyberspace provided in IT Act
- S 1(4) of BNS provides extra-territorial jurisdiction
f. Casio India Co. Ltd. v. Ashita Telesystems Pvt. Ltd.
One of the first cases. Casio is a Japanese co. has a 100% subsidiary in India CI,
has registered its domain CI [Link], etc. somehow Ashita has also registered
Casio India Ltd, now confusion around CI. Case filed in Delhi. Ashita says we have
business out of Bombay, we don’t have any user base etc anything in Delhi. The
court said mere accessibility gives us jurisdiction. Just because we have access to
you in Delhi we can exercise our jurisdiction. Accessibility is enough. Even if one
user uses here then we have personal jurisdiction. For passing off etc other
contentions were made, but for jurisdiction they said mere accessibility gives
jurisdiction.
* This is not followed now.
g. India TV Independent News Service Private Ltd. v. Broadcasting Live LLC
Court departed from Casio here. IB is based out of Arizona. The Court said that
just because the website is accessible you do not get to exercise personal
jurisdiction, The Zippo sliding scale test referred here- websites can be active,
passive, or interactive. If it is a passive website (mere dissemination of info), then
no jurisdiction. If it is an interactive website, the level of interaction depends then
there is jurisdiction.
If there is commercial activity + interaction, the court can exercise jurisdiction.
jurisdiction. Next, active- v high engagement- eg. gaming sites so can exercise
jurisdiction.
The case also highlighted that apart from Zippo, you have to apply target target-
based approach. In this case, there was no target approach to target India.
After zippo, also apply the minimum contact test.
Apart from the zippo, three other tests to check:
1. Purposeful availment
2. cause of action
3. whether the acts of the defendant had substantial contact with the foreign state

h. Renaissance Hotel Holdings Inc. v. B. Vijaya Sai, 2009

- IP infringement – Renaissance Hotels chains it is a functioning hospitality-
person wanted to book Renaissance but booked Sai Renaissance instead
- So Renaissance filed a case for IP Infringement
- Question- can Delhi Court have jurisdiction- The person sat in Delhi
booked the hotel from Delhi itself
- Delhi HC- refuses to exercise jurisdiction- mere accessibility is not only the
factor- Bangalore Court can have jurisdiction

i. Banyan Tree Holdings v. Murali Krishnan Reddy

Relevancy of the Case: Does the accessibility of a website at a particular location invite
the local court’s jurisdiction in a passing-off claim?

Statutes and Provisions Involved

The Code of Civil Procedure, 1908 (Section 20)
The Trade Marks Act, 1999 (Section 134(2))
The Copyright Act, 1957 (Section 62(2))
The Information Technology Act, 2000 (Section 2(1)(j), 2 (1)(k), 11, 12, 13, 75)

Relevant Facts of the Case

The plaintiff had adopted and used the word mark ‘Banyan Tree’ in 1994, which had
acquired a secondary meaning due to its extensive usage.
The plaintiff’s website has been accessible in India since 1991 and has advertised its
products and services in the country.
In collaboration with The Oberoi Group, the plaintiff operates 5 spas across India.
Despite being a registered proprietor for the mark in different countries, it does not
hold any registration in India but has sought them.
In October 2006, the defendants, who reside in Andhra Pradesh, initiated a work
named Banyan Tree Retreat.
The name resembles the plaintiff’s mark and belongs to the same trade/industry. It is
deceptive in nature. Therefore, the plaintiff sought an ex-parte interim injunction to
restrain the defendants from using the mark.

Prominent Arguments by the Advocates

The plaintiff’s counsel argued that the court has territorial jurisdiction on the grounds
of Section 20 of the Code of Civil Procedure, 1908. The defendant’s brochure depicts
the business to be in Delhi. Their website is interactive in nature and not passive. The
plaintiff also relied on the doctrine of passing off.
The plaintiff’s counsel also highlighted Section 62(2) of the Copyright Act, 1957, to
sue the defendant in a court within whose jurisdiction the plaintiff resides or works for
gain.

Opinion of the Bench

The mere fact that a website is accessible to a specific place will not invite the court’s
jurisdiction to a passing-off action. Factors like the level of interactivity and
undertaking of commercial activity will also play an imperative role.
The bench analysed the position in the US with the help of Zippo Manufacturing Co.
v. Zippo Dot Com, Inc. Drawing inspiration from the UK, it referred to the case of 1-
800 Flowers Inc v. Phonenames.
The bench believed a division bench should decide this case and settle the issue with
authority.

The court gave the following test:

1. Degree of availment: whether user is able to avail the service or not. You cannot
give a spa online, has to have a physical aspect. Unless there is physical place in Delhi,
it is not available in Delhi. Merely you can access and mere mention, does not conclude
it giving service there. There also has to be intention for commercial transaction, that
is payment option is there or not on the website. Even though Delhi mentioned is
there a gateway which leads to pay/IFSC etc is there anything. Availment should also
result in some kind of harm to the plaintiff.
2. Degree of interaction: India TV said purposeful availment, cause of action and
substantial connection. Here, the court says that substantial connection is very
subjective. In a website, it becomes the number of user accessing the website, the user
base. Eg- mere 1-2 people using does not amount to substantial connection.
Substantial connection has to be based on the number of users on the website + how
many actually avail the site. Also, Delhi mentioned on the website whether it was an
active advertisement to reach max number. Now mere put on site wouldn’t amount to
active advertisement- this is important to understand whether there was intention to
defraud. Eg. if an influencer is posting, it is an active advertisement. Intent not to
primarily target people of Delhi. Mere posting of a website not a criteria for
jurisdiction, has to satisfy both points.

Final Decision
The bench passed an order to transfer the case to a division bench.

j. WWE v. M/S Reshma Collection

Plaintiff filed a suit seeking permanent injunction restraining infringement of
Copyright, Infringement of Trade Mark, Passing Off, Dilution, Rendition of
Accounts, Damages, etc in respect of their Trade MArks ‘WWE Scratch Logo’ and
‘WORLD WRESTLING ENTERTAINMENT’.
The Plaintiff was a Co. incorporated under the laws of the State of Delaware, USA.
The Defendants were located in Mumbai and were not claimed to be doing
business in Delhi.
 In light of the same, the Hon’ble Court asked the Plaintiff as to how does the
Hon’ble High Court of Delhi has the jurisdiction to try the present case in light of
Archie Comic Publications Inc. v. Purple Creation Pvt. Ltd. & Ors. and Dhodha
House v. S.K. Maingi as Plaintiff is a foreign Co. with no branch office in Delhi.
Averments in the Plaint
The Hon’ble Court has jurisdiction to try the present case under Section 134(2) of
the Trade Marks Act, 1999 and Section 62(2) of the Copyright Act, 1957 as the
Plaintiff carries on business in Delhi in the following manner:
(i) The plaintiff‟s programmes consisting of its various characters are broadcasted
at Delhi.
(ii) The plaintiff‟s products such as its merchandising goods and books are
available in Delhi.
(iii) The plaintiff‟s goods and services are sold to consumers in Delhi through its
websites which can be accessed in Delhi.
Plaintiff’s Submissions:-
- That Archie Comic Publications Inc. v. Purple Creation Pvt. Ltd. & Ors. and
Dhodha House v. S.K. Maingi do not take into account “new media”, i.e. web-
based business models.
- With the advent of new media and transactions over the internet the Plaintiff is
deemed to be carrying on business in Delhi.
- Plaintiff’s website is accessible to consumers in Delhi and Plaintiff’s website was
accessible in Delhi.
- Website of the Plaintiff is interactive website.
- The issue of jurisdiction is a mixed question of law and fact and can be adjudicated
at the final stage of the suit.
▪ The Hon’ble Court held that the present Court does not have
jurisdiction to try the present matter. In arriving at the said
conclusion the Hon’ble Court gave the following reasons:
- The Plaintiff cannot be said to be carrying on business in the jurisdiction of the
Hon’ble High Court of Delhi as per the Supreme Court judgment passed in
Dhodha House v. S.K. Maingi, wherein the sum and substance of the criteria for
‘carrying on business’ is held to be that an essential part of the Plaintiff’s business,
coupled with an element of control exercised by the plaintiff must exist in such
 place where the plaintiff claims to be carrying on business either on it’s own or
through an exclusive agent.
- As far as the concept of “new media” and internet transactions are concerned, the
same does not interrupt the determination of the issue of whether the
merchandiser is carrying on business at a particular place. Business still happens
over telephone and fax.
- Therefore, Plaintiff has to show that it actually has business interest at the relevant
place, a voice in the proceedings; a share in gain or loss and some degree of control.
- Plaintiff could show presence of an exclusive C & F Operator, Dealer or the fact
that Plaintiff has a registered office/branch office or the factum of exclusive tie-
up with an agent.
- In the present case, the Plaintiff has not made any averment to the effect that it
has any branch office or exclusive agent anywhere in India.
- If the plaintiff’s submission were accepted, it would lead to a situation that a
Plaintiff can file suit any place which provides internet access to Plaintiff’s website.
- If the intention of legislature had been to provide jurisdiction at the place of access
of Plaintiff’s website, it would have been expressly provided for.
- Reliance placed on the concept of Interactive website of the Plaintiff is misplaced
as the prevailing law on the subject deals with website of the Defendant and not
the Plaintiff
- The contention that goods of the Plaintiff are sold in Delhi is negativated by the
Hon’ble Court in view of Dhodha House v. S.K. Maingi which observed that “It
is possible that the goods manufactured by the Plaintiff are available in the market of Delhi or
that are sold in Delhi but that by itself would not mean that the Plaintiff carries on any business
in Delhi”

k. Super Cassettes Industries Ltd. v. Myspace Inc. & Anr.

The case of Super Cassettes Industries ltd. v. Myspace Inc. & another, is related to
copyright issues, cyber law and international jurisdiction. The plaintiff filed the suit
for restraining infringement of copyright, damages etc. through website of
Myspace having base at US. Defendant Myspace raised the jurisdictional objection
on the ground that:
(1) The defendant is residing and carrying on business outside the jurisdiction of
this court i.e., USA,
 (2) The cause of action has not occurred within the territorial jurisdiction of Indian
court.
The Court in the case discussed jurisdiction rules of the Copyright Act and the
Code in detail. The Court emphasising on Section 62 of the Copyright Act held
that the specific jurisdictional provision is plaintiff-centric and due to non obstante
clause, it will operate in addition to what has been provided in the Code. This is to
be treated as an additional ground above the normal grounds laid down in Section
20 of the Code of Civil Procedure. The operation of the rule under Section 20 CPC
is not absolute and is subjected to municipal law. If municipal law provides
otherwise or overrides the Private International Law principles, then municipal law
will prevail. In the given case the Code of Civil Procedure rules are overridden by
the Copyright Act 1957 rules on jurisdiction. Deliberating on the jurisdiction
ground of ‘torts’, the Court held that the commission of the tort is India.
The website of the defendants was engaged in providing online business worldwide
including in India. The tort or civil wrong is caused in India as the act of
downloading of copyrighted songs has occurred in India without the permission
of the plaintiff. In case where the work is uploaded by the user on the foreign
server, the initiation of the tort or part of the same has occurred in India as the
infringing work without the authority of the plaintiff is communicated to the
defendant with a limited licence to further modify and communicate further. The
said commission of the acts or the part of the overt acts constitutes the part of
cause of action within the meaning of Section 20 (c) of the Code of Civil Procedure
and therefore the court has jurisdiction even on the basis of the cause of action
clause of CPC.

l. Exxon Mobile Corporation v. Exon Corp Private Ltd.

This case upheld Banyan Tree case- website – advertisement services available all
over India and also payment – intention to service (conduct) then the scope of
jurisdiction- will be needed to be seen- so Banyan Tree is applicable

SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra

This is a case related to cyber defamation. This is the first case of its kind from India. In this case,
the defendant was an employee of the plaintiff's company who used to send derogatory, obscene,
vulgar, and abusive emails to his employers and also to different subsidiaries of the said company
all over the world. The motive behind sending those emails was to malign the reputation of the
company and its Managing Director all over the world. The High Court of Delhi assumed
jurisdiction over a matter of defamation of reputation of corporate through e-mails. An ex-parte
injunction was granted by the court.

Model Laws

1. **International Conventions on Cybercrime**

-UN Charter (1943)
- Article 2 outlines **7 Principles**, with **3 important principles** related to cybercrime:
- **Principle of Sovereignty**
- **Principle of Non-Intervention/Protection from Use of Force**
- **Principle of Self-Defense**

- International Covenant on Civil and Political Rights (ICCPR), 1980

- **Council of Europe’s Convention on Cybercrime (Budapest Convention), 2003**

- **Significance**: The first comprehensive international treaty aimed at combating cybercrime.
- **Issue**: Primarily Eurocentric, with less global acceptance.
- **Article 25** (Chapter 3): Emphasizes international cooperation through mutual assistance.
- **Article 32(3)**: Allows access to data outside EU jurisdiction, which is why many countries,
including India, do not adopt this convention.
- **Offence Classification**:
1. **Offences against Confidentiality, Integrity, and Availability of Computer Data/Systems**
2. **Computer-Related Offences**
3. **Content-Related Offences**
4. **Offences related to Infringement of Copyright and Related Rights**
5. **Miscellaneous Provisions for Ancillary Liability and Sanctions**

- African Union Convention on Cyber Security and Personal Data Protection, 2014
- Focuses on cybercrime prevention and personal data protection for African nations.

- Russia's International Code of Conduct for Information Security

 - Russian-specific legal framework aimed at regulating cybercrime and promoting information
security globally.

- China’s Cyber Security Law, 2016

- **Key Aspects**: Focuses on information security but has a limited scope. It strictly regulates
media and freedom of speech, while performing well in governance and data protection.

2. International Conventions for Determining Jurisdiction

- Brussels Convention
- Provides general guidelines for jurisdiction in contractual and consumer disputes.
- Initially signed by EU members and remains binding upon ratification.
- **Brussels Effect**: Countries that partner with EU member states are indirectly influenced
by the convention’s jurisdictional rules, even if they are not direct signatories.
- **Replaced the 1969 Convention**.
- **Important Articles**:
- **Article 2**: Jurisdiction based on the domicile of the person within the EU, irrespective
of nationality.
- **Article 5**: Jurisdiction applies if a person is domiciled in a contracting state.
- **Article 5.1**: Applies to contracting states only.
- **Article 5.2**: In tortious cases, the court where the harm occurred will exercise
jurisdiction.
- **Comparison to Section 20 of the Civil Procedure Code (CPC)**: Jurisdiction based on the
place of residence, business, or where the cause of action arose.
- **Party Autonomy**: If the contract specifies jurisdiction, that will prevail.

- **Rome Convention on Choice of Law**: Provides guidelines for choosing the law
governing international contracts.

- **Hague Convention on Private International Law (PIL)**: Establishes rules for

jurisdiction, enforcement, and choice of law in private international law matters.

- **Hague Choice of Court Convention**: Regulates jurisdictional matters and ensures the
recognition and enforcement of foreign court judgments.
3. **Brussels Conventions**
- **Rules for Determining Jurisdiction**: Based on domicile within the EU, applicable across
member states.
- **Rules for Enforcement**: Ensures recognition and enforcement of judgments.
- **Key Articles**:
- **Article 2**: Jurisdiction applies to individuals domiciled in EU member states.
- **Article 5**: Regulates jurisdiction based on domicile, irrespective of nationality.

4. **EU Convention on Cyber Security and Personal Data Protection**

- Focuses on:
- **Electronic Transactions**
- **Personal Data Protection**: Ensures the identification and protection of individuals in
cyberspace.
- **Cybersecurity and Cybercrime**: Promotes e-governance, cybersecurity, and protection
against cybercrimes.

5. **Important Case Law**

- **Asten Invt Ltd v OJSC Russian Aluminium (Rusal), 2006**
- Facts: A hacker introduced spyware in a London network. The place of origin was Russia.
- Arguments: Russian courts claimed jurisdiction as the origin was from Russia.
- Outcome: The court ruled that under the Brussels Convention, England had jurisdiction over
the matter.