Jurisdictional Issues Arising from the Cyberspace: Towards a Lasting Solution for Nigeria By Grace Kalu
“Jurisdiction is the blood that gives life to the survival of an action in a court of law, and without jurisdiction, the action will be like an animal drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it will be an abortive exercise”- The Court in Utih v. Onoyivwe (1991) 1 NWLR [Pt. 166] 166 SC
It is no doubt that Jurisdiction is the most crucial component of a case in any court of law. If the court does not have jurisdiction, the matter would not succeed in the court. A court (whether Domestic or International) without jurisdiction does not have any authority to entertain any matter, to decide rights and duties or impose penalty or punishment.
Jurisdiction may be territorial or geographical. Territorial jurisdiction is often invoked where the subject matter of a case arose in a particular territory and also involves persons living or carrying on business in that particular territory.
The cyberspace is the domain of a global technological environment. It is a virtual environment which enhances communication and relations over computer networks. With regards to territorial jurisdiction, the cyberspace is at best a borderless jurisdiction. In this present time, it is evident that numerous transactions, disputes and crimes occur on the cyberspace. This has raised the basic problems of jurisdiction in international laws and domestic laws because of the de-territorial nature of the cyberspace.
In the present internet world, the e-commerce ventures have multiplied tremendously bringing forth cross-border internet disputes. Ideally, companies that carry out operations in the cyberspace should not be restricted by the traditional notions of sovereign territories and boundaries. Now, should it be interpreted to mean that if a company has an internet presence in every country, then every country should have jurisdiction over the company?
The question of which law is applicable to the borderless world of cyberspace always arises before the Governments, Judiciaries and Legislatures. In the normal trend, the authority of the Sovereign power is limited in a sphere and termed as Jurisdiction to enable it exercise its power within that sphere. The legislative authority has power to exercise its rules according to the law of the land to regulate the conduct of the masses. The Executive by its enforcement jurisdiction has the power to implement the laws within its territory. When a court claims to have jurisdiction over a dispute, it is affirming the authority to adjudicate the issue at hand.
It is on record that the customary international law does not allow evasion in a sovereign state by any other (foreign) entity. In the celebrated Lotus case, the permanent court of justice held thus:
“now the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory… except by virtue of a permissive rule derived from international custom or from a convention”
Now, the most basic cause of multiple jurisdictions is the capacity of the individual actor to commit crime against many nations. There are thousands of examples of multi-jurisdictional crimes. News published in The New York Times addresses the gravity of the problem. According to The New York Times, published on May 9, 2013, the hackers distributed the information to individuals in 20 countries who then encoded the information on magnetic-stripe cards. On December 21, 2013, the cashing crews made 4,500 A.T.M. transactions worldwide, stealing $5 million. According to USA Today, after penetrating the processor’s computer network, the hackers fraudulently manipulated the balances and withdrawal limits on Rak bank prepaid debit card accounts. Then, teams of so-called cashers allegedly launched carefully timed attacks that caused more than $5 million in criminal losses from more than 4,500 ATMs in about 20 countries. In this ATM attack, people from at least 20 countries were involved. The question then would be: Which country has the territorial jurisdiction to entertain this matter?
Similarly, in instances of online copyright infringement, multiple jurisdictions can be targeted. A scenario of linking and copyright infringement links to copyrighted material from different jurisdictions can play out.
What then is the issue of territorial jurisdiction arising in the cyberspace?
In most cases, the parties to an internet transaction usually lay hold to claims that national law applies to some part of their activities even when it is obvious that the cyberspace is a world on its own. The problem of multiple and overlapping jurisdiction is more prominent either because the national courts have applied the favorable principles out of available principles of International law or evolved new principle(s) to assume jurisdiction.
It is apparent that this is not an issue for Nigerian laws and institutions alone to tackle. Therefore, the solution to this issue would range from the availability of international treaties where states would agree to be a party to the adequate set up of an online dispute resolution mechanism so as to handle issues that could be so handled online. Also, in this chaotic situation, there is a need to establish a supra-national organization to deal with problems posed by cyberspace. The legitimacy of any rules governing online activities cannot be naturally traced to a geographically situated state. Therefore, the cyberspace needs to be recognized as a separate jurisdiction because an individual sovereign state may not exert adequate control over it. Whichever way, the law must also move with the technological tide and evolve to adequately address the jurisdictional questions in the cyberspace.
Grace Kalu is currently a student of the Nigerian Law School, Lagos Campus. You can reach her on firstname.lastname@example.org
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