Article by Pavan Duggal, Advocate, Supreme Court Of India, President, Cyberlaw Asia, Cyberlaw Consultant, President, Cyberlaws.Net, Member, MAC, ICANN
Cyberlaw 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.
However, 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.
The 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.
From 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.
Different 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.
This 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.
The 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.
However, 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.
In 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.
This 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.
This 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.
This 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.
The 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.
September 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.
The 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.
The 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.
The 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 2001.
In 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.
For any Cyberlaw query, please contact Supreme Court Advocate, Pavan Duggal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.