ADVOCATE, SUPREME COURT OF INDIA,
has been a vibrant field in which numerous developments took place in
the year 2001 on the global level.
It is not fair to undermine the importance of some events as
compared to others since each development in the field of Cyberlaw was a
step further towards a more definitive, regulated and orderly cyberspace
and towards evolving the regulated code of conduct for online activities
in the context of electronic medium.
without intending to cause any disrespect to other important Cyberlaw
developments in the year 2001, personally speaking I would like to pick
up two important events, which already have changed and further promise
to change completely certain vital aspects relating to Cyberlaw.
first most important development that took place in the field of
Cyberlaw in the year 2001 on the global scenario was one event, which
substantially altered the rules of the game in the prickly issue
concerning jurisdiction. This was the Yahoo! France case.
the beginning of Internet, jurisdiction has continued to challenge legal
minds, societies and nations in the context of the peculiar inherent
character of the Internet.
principles were being evolved in different national jurisdictions in
this regard. In the
beginning the courts of different countries began making the mere access
to Internet as a sufficient ground for assuming jurisdiction over
Internet related transactions. Then
that principle got a substantial redefinition by the Zippo case in the
United States of America. The
Zippo case required courts to look at something more the mere Internet
access in order to assume jurisdiction.
That “something else” could be in the form of the
interactivity of the website or any other factor.
The year 2001 saw a further redefining of the principles of the
important subject of jurisdiction in the famous Yahoo! France case.
case has a peculiar history. Two
groups in France complained to the court that Yahoo! France’s auction
websites sold Nazi memorabilia and Third Reich related goods, which is
banned under French Law. They consequently requested the court to take
stringent action. Yahoo!
took up the plea that it was a company incorporated in the United States
of America and that the French Laws did not bind it.
It was further contended that, technologically speaking, it was
not possible for Yahoo! to block access to all Nazi Memorabilia.
French Court ordered Yahoo! France to remove all Nazi memorabilia and
content from its website failing which it would have to pay a fine of
100,000 frank for each day of non-compliance.
Yahoo! complied with the order of the French Judge and remove
almost all of the Nazi memorabilia links on its auction sites.
Yahoo! also moved an American court for a declaration that the
directions given by the French Judge were not enforceable in United
States and that Yahoo! being an American company was not bound by the
decision of the French Court.
a historical judgment, the American District Court of California held
that the directions of the French Judge could not be enforced in the
United States of America, as the same were violative of the first
Amendment of the US Constitution. The
Judge further held that though the American court respected the French
judgment, yet the fact was that the French judgment was passed in the
peculiar facts relating to France and that such judgment would not be
applicable in American Law on American citizens and legal entities.
judgment has got far reaching significance and consequences on the
entire subject of jurisdiction. Till now, the courts anywhere in the world could assume and
were assuming jurisdiction on Internet transactions and websites that
were located outside the country.
decision underlines the principle that even if a foreign court passes a
judgment or direction against a legal entity of a particular country say
Country A, then that judgment or direction would not be applicable
automatically to country A’s legal entity or citizen.
The decision or direction of the foreign court will need to be
scrutinized by country A’s courts keeping in mind the touch stone and
basic principles enshrined in the constitution of the country as also
enshrined in the local laws of that country, before it can be
enforceable in Country A.
judgment should also deter courts on unnecessarily assuming jurisdiction
on Internet related matters. Even
the Zippo principle has been further redefined by Yahoo judgment.
For these particular reasons, I personally consider this is to be
one of the two most important developments, which took place in the
field of Cyberlaw in the year 2001.
second most important development in the field of Cyberlaw in this year
relates to cyber crime, September 11th attacks on the World
Trade Center and the consequent signing of the International Cyber Crime
Treaty. Since the beginning
of Internet, cyber crime has been emerging as a major source of
headaches for government all across the world.
The absence of any international law on cyber crime further
complicated matters with different countries assuming distinct national
approaches for controlling, regulating and preventing cyber crime.
11th 2001 saw the turning point in the history of the World
Wide Web and the Internet. The
attacks on World Trade Center’s Twin Towers were an example of how
terrorist acts had been conceived, planned and committed using the means
of Internet. That singular
instance of September 11th changed the way we use the
Internet and the way Internet is going to be regulated.
scenario emerging post September 11th 2001 saw the adoption
of the International cyber crime Treaty.
This international treaty, being a baby of the European Union,
was adopted after 29 drafts and more than 4 years of work.
30 members of the European Union apart from the United States,
Canada, South Africa and Japan have already signed the International
Cyber crime Treaty.
International Cyber Crime Treaty promises to become the first
international benchmark for controlling and regulating cyber crime and
for ensure cooperation amongst different signatory nations for
exchanging information concerning cyber crime and cyber criminals.
The International Cyber Crime Treaty is yet to come into
implementation. However, almost single handedly the treaty promises to
fill up the void about the need for having an international regulatory
mechanism for controlling cyber crime that has existed since the
beginning of Internet.
International Cyber Crime Treaty also becomes the first international
treaty to be in place for any issue concerning Cyberlaw.
The treaty may not be perfect, and no treaty is perfect.
However it does give a very strong starting point for
international efforts to regulate and control cyber crime.
This treaty also promises to possibly change the way cyber crime
would be investigated, regulated and punished on a global scenario, in
the context of increasing cooperation and exchange of information
between signatory member countries on the issue of regulating cyber
crime. This has been the
second most important development in the field of Cyberlaw in the year
addition, there have been numerous other important developments, which
have impacted Cyberlaw in the year 2001. Suffice it is to say at this
juncture that Cyberlaw is constantly developing.
It is expected that the year 2002 is likely to see further
consolidation in the growth of Cyberlaw as an evolving discipline.
It is also hoped that the year 2002 would witness the laying down
of international recognized principles governing various issues and
subjects in the newly evolving discipline of Cyberlaw.
Pavan Duggal can be contacted at his email email@example.com,