Cyber Law -
Jurisprudence
NANDHA KUMAR S A
To define cyber jurisprudence, Black’s
Law Dictionary gives us two useful
definitions of jurisprudence
A method of legal study that
Jurisprudence concentrates on the logical structure of
law, the meanings and uses of its
concepts, and the formal terms and
modes of its operation.
A system, body or division of law.
Cyber Jurisprudence
Cyber jurisprudence is the legal
study that concentrates on the
logical structure, the meanings
and uses of its concepts, and the
formal terms and modes of
operation of cyber law.
Cyber Jurisprudence deals with
the composite idea of Cyber
Jurisdiction
Is the internet a vanishing point of law?
whether cyber law is a law or not.
It is said that Law cannot function in free space or
vacuum as it seeks a definite place and people
voluntarily abiding by it.
But if law requires some definite place to be
operated and few individuals consciously abiding
CYBER by it, then what is the need for recognizing a group
of individuals as a society and for making separate
SOCIETY rules for their governance? Above all, is it mere
physical existence or is there any other thing that
substantiates the matter which makes a group of
individuals as society?
cyber society’ or ‘cyber community’ is discreetly
used by social thinkers, lawyers, and research
scholars to refer to internet users due to its
accessibility to every individual. And the same
paved the way for the sharing of ideas, moods, and
building of common interests and consensus.
Cyber Law
Cyber Law as stated above is the law governing "cyberspace and in general encompasses laws
relating to:
1. Cyber Crimes :- unlawful acts where the computer is either a tool and/ a target
2. Electronic and Digital Signatures :- used to authenticate electronic records
(Digital signature (is to) satisfy triple requirement of signer authentication, message authentication
and message integrity- The features attributes to digital signature makes it more trust worthy than
Hand signatures.)
3. Intellectual Property:-Relating to copyright, trademark, patents, design and licences.
4. Data Protection and Privacy:-in collecting, storing and transmitting data in soft forms
Computer used as target
Eg: virus attack, hacking
Computer used as tool
Eg: cyber terrorism, pornography
How crimes are
Cyber crime can be divided into 3v
conducted categories:
1. Against individuals
2. Against property
3. Against government
GENERAL 1. Rights and Duties
CONCEPTS OF
JURISPRUDENCE 2. Possession and Ownership
3. Concept of Property ▪
4. LiabilitY
Rights and Duties
According to Hibbert, a right is “One person’s capacity of obligating others to do or forbear by
means not of his own strength but by the strength of a third party.
If such third party is God, the right is Divine. (creators right)
If such third party is the public generally acting through opinion, the right is moral. (cyber ethics)
If such third party is the state acting directly or indirectly, the right is legal.(cyber law)
This right and duty relationship stands good
even in case of Internet contracts. If an e
mail service provider promises that he won’t
sell these customers data base to any body,
then that is an obligation cast upon service
provider to comply. On the other hand every
customer has a right now to go against
service provider in case he contravenes the
same.
Perhaps there might be a problem in tracing
the physical location of individuals
contracted through Internet, but the rights
and duties could be identified through the
terms of contract
Possession and Ownership
There are two essential elements of possession.
They are corpus and animus.
Corpus means actual possession and animus means intention to possess.
If any of these are not present, then there is said to be no possession.
The passwords are used as locks. With the help of filters one could regulate unauthorized
accessing and unlawful intrusions into one’s own property but they are either too expensive or less
reliable
Eg: WEB PAGES
Essentials of ownership are
It is indefinite in point of user. ▪
Unrestricted in point of disposition.
Right to possess is part of ownership.
Right to exhaust.
Owner could exhaust his ownership to the maximum.
Owner may part with ownership rights and may retain the other.
Generally, Owner will only have right to destroy
Concept of Property
(a) Property is considered as a bundle of rights. ▪
(b) In a narrower sense, property includes only the proprietary rights of a person. ▪ Property
rights are rights enjoyed on subject matter of the right. ▪
(c) The term property sometimes referred to corporal property that is tangible. ▪
(d) It indicates greatest rights of enjoyment known to the law intangible.
Perhaps our cyber property issues fall in the gamut of incorporeal properties itself,
because in cyberspace everything is intangible
Liability
According to Salmond “liability or responsibility is the bond of
necessity that exists between the wrongdoer and the remedy of the
wrong”.
LEGAL APPROACH
TO CYBERSPACE
Internet as a path to cyber space ▪
Dewitt describes cyberspace as
“today’s increasingly
interconnected computer system”
he maintains that cyberspace is pure
genius because what was once an
imagined thing of a writer has
become a reality.
“Legal principles must reflect the ideologies of their
place and time” Law has to identify the common
principles on which the cyber society is working,
norms that are voluntarily followed and customary
practices, cultures, usages that guide this section of
netizens. This set of self regulated practices evolving
out of prudence of cyber citizens resulting into cyber
jurisprudence.
The basic The most contentious disputes in the Cyber world are
those where the dispute is between a Netizen and a
principle of Citizen. The Trademark related Domain name
disputes, the Copyright disputes on Music are some of
jurisprudence the examples of such disputes. As long as the
trademark owners are away from the Internet world
(as was the case until a few years back), there are no
domain name disputes. The domain names were
registered on first come first served basis. It was only
when the Metasociety members started claiming
rights on the Cyber properties such as the “Domain
Name” by virtue of their “Non Cyber Society
Rights”, that the disputes became more frequent.
Theories of Information
If it is the place, where information is If the subject matter of law are the
flowing, to be regulated then invariably individuals, as they be in physical space
law has to attribute some significant using physical devises itself, already existing
legal status to the cyberspace and laws would suffice to clampdown misuse of
IT and to curb technological malpractices.
accordingly it has to deliberate the But the difficulty in this approach is, at times
character, nature, jurisdiction and it becomes impossible to trace out individual
functions of the cyberspace. ▪ ii. behind a crime committed and it is
impracticable to expect that every cyber
offence originate from physical space
How to regulate information
If it is the ‘information’, which is subjected to the regulation by the law then the horizons of the
IT law should be so drafted that it deals with production, distribution, dissemination,
processing of information as a whole as most of the Communication Acts attempted in the
resent past, like German Information and Communication Services Act (1998) and British White
Paper, proposing the creation of a cross-media regulatory authority, published in the year 2000.
Similarly The Indian Communications Convergence Bill 2000 which does not recognize
difference between the e-mail viewed in television and laptop.
Theories on Information Law Approach
Professor Cohen-Jehoram - regulating information with three concentric squares.
He believes that individual at the outset establishes copyrights over a subject matter and then
media law governs the dissemination of the same. Information law deals with the production,
processing and distribution of information as whole not just publicly disseminating information. It has
not established a clear reason behind positioning copyright law at the center or it does not explain the
relation between media and information law etc, this theory has established the genesis of information
law approach
For a positive import of ‘cyber jurisprudence’ in its space, it demands for ‘Real knowledge’
about virtual space at the individual level, ‘Consensual knowledge’ at the level of institution and
‘Doctrinal knowledge’ at the judicature level so that crystallization of cyberspace would be
possible
P V Sindhu case
PV Sindhu and her agency
Baseline Ventures is taking
over 20 brands to court for
using her image and name
for moment-marketing,
without her consent or
proper permissions.
The agency is seeking
damages of Rs 5 crore from
each of the brands.
Information as Communication process
Professor Dommering propounds the second school of thought; he opines that the study of
information law is the study of the communication as a whole. Dommering theory attracts the
attention of legal scholars because his theory splits information technology into communication
processes whereby facilitating regulation of each segment of information communication.
This theory takes into account every law like copyrights, media and communication have their
own respective fields of operation and no single law has occupied center position. Dommering’s
theory broadens the scope of information technology laws and clear demarcation of
communication regulations can also be seen.
Mr. X who resides in India, has purchased an
online book offered by Mr. Y residing in USA.
How this transaction should be viewed, as if
like, Mr. X gone to USA or is it like, Mr. Y has
come to India. What would be the scenario if
Consensual the book is downloaded, does it make any
difference in jurisdiction, these questions have
Knowledge – some substantial jurisprudential significance
the quest to resolve would lead to the
Jurisdictional crystallization of cyberspace.
Traditionally the questions of jurisdiction are
Paradigms resolved under the assumption that the
mountains and trees will not change their
place, but in cyberspace there are neither
mountains nor trees. Everything in cyberspace
is variable and nothing is constant.
CONTRACTS
In a traditional contract, the jurisdiction is
arrived at
1. The place of defendant resides at
2. Where the cause of action arose? etc.,
these parameters would not work in cyberspace
(see above illustration).
Lex loci delicti, : (the law of the place of the wrong
Cyberspace or tort) the doctrine of choice of law is taking its
shapes in different issues in the areas of information
Doctrinaire technology more particularly in case of internet
defamation.
As court has to consider the defamation laws of each
place in which the defamatory statements have been
placed, seen or read which is not practicable because
defamatory laws are not uniform in all countries. This
again leads to the unification of internet defamation
law for which a common jurisprudential thought is
needed
Cyber space
Cyberspace or Cyber is the artefact of information technology and the buzzword for the virtual
electronic world crafted by computers, networks, software, data storage devices (such as hard
disks, USB disks etc), the Internet, websites, emails and even electronic devices such as cell
phones, ATM machines etc. Characterised by intangibility and anonymity, cyberspace offers a
fancied replica of the corporal sphere.
Cyber law legalise legitimate transactions carried over cyberspace while curbing the evil ones, like
e-terrorism and digital piracy that can even pose threat to national Sovereignty. For this very
reason cyberspace calls distinct regulatory structure.
WHETHER ATM COMPUTER?
Diebold systems private Limited, - Case the court held that ATM is not a computer under Karnataka
Sales Tax 1957
Washing Machine,
Automatic Fridge,
Satellite – Application
of ITA
E - Auction
P R Transport agency v UOI 2005
in this case Bharath cooking coal held e-auction for selling bulk coal. PRTA bid 4000 metric tons
of coal and made payment for coal. Later BCC disagreed to deliver coal as there was technical
error in selecting the bid. The court held BCC liable to deliver coal.
Norway v. Tvedt
The accused was the founder of a far right group in Norway. He was convicted for posting racist
material that mixed neo-Nazism, racial hatred and religion, on a website. The Asker and Baerum
District Court in its observation maintained that, “Tvedt made efforts to draw children and young
people into anti-semantic and racist beliefs”. This judgment has become historic because it is the
first time someone in Norway has been sentenced to prison and Tvedt was convicted for the
contents of his home page, even though it was posted on a server that was based in the United
States and out of Norway’s Jurisdiction.
JUDICIAL INTERPRETATIONS
Thirty Tell Inc v. Benzenek Boys - International calls – needs to access codes – unauthorized
usage – theft with trespass.
Transmitting or Encroaching electronic signals was also deemed as Theft - State v. Migrow
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