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JURISPRUDENTIAL DIMENSIONS OF CYBERSPACE
**KARTAR RAMNANI & M.SHIVASHRITHA
INTRODUCTION
Cyber Jurisprudence is an emerging subject around the world and has widened the growth of
newer dimensions in the field of law. In today’s world, there are several virtual space
transactions including those of virtual property. However there are no strong laws to bridge the
gap between the physical society and the virtual space, thus there is a need to develop a separate
‘Cyber Jurisprudence’ to deal with such disputes. For instance, in India, if a dispute is regarding
any virtual immovable property, according to physical laws the dispute must be subject to the
Transfer of property Act and the Registration Act. However the Acts do not recognize virtual
property and therefore it would be inappropriate to treat the dispute as a ‘Transfer of Property
Dispute’. In the recent judicial reviews it has been observed that whenever there is an
implementation of existing laws to cyber space to resolve any conflict, the laws of the existing
laws have prevailed. Due to this, there increases a need for having laws to resolve the conflicts in
cyber space; this becomes the bedrock of ‘Cyber jurisprudence’. But before understanding cyber
jurisprudence, there is a need to understand the meaning of cyberspace, many terms can be used
to describe the term cyberspace- before its evolution, it was described as computer crime, but
with the pervasion of technology terms like high technology or information age were added to
the definition. Also terms like cybercrime, net crime was also introduced with the advent of the
internet. Currently however, there is no definite meaning or definition of the term cyberspace.
According to the Oxford dictionary, cyberspace is- “The notional environment in which
communication over computer networks occurs.”1
According to Black’s law dictionary, cyberspace is-“The realm where computer communications
and simulations are used on the internet. It is like the human psyche translated to the internet.
1
Oxford Dictionary
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The objects are not physical and made up of data manipulation. The term was started by William
Gibson in 1982” 2
Presently the term cyberspace is used as a synonym for virtual reality, while some others use it as
a synonym for the ‘World Wide Web’ or for the internet as a whole, and also sometimes
including the telephone, television and other forms of communication networks.
In a general sense, cyberspace has three main categories

Target cyberspace: A crime in which the computer is the target of the offence

Tool cyberspace: A crime in which the computer is used as the main medium in
committing the offence

Computer incidental: A crime in which the computer plays a very minor role in the
commission of the offence.
2
Black’s Law Dictionary
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VIRTUAL WORLD VERSUS REAL WORLD
To under the difference between the virtual world and the real world there is no better example
that the Bragg v. Linden Research Inc. case in the US. It was a law suit in physical space over a
dispute of a virtual property. The law suit in question was filed by Mr Marc Bragg against an
Internet Game company called Linden Lab based in San Francisco for alleged fraud, conversion,
unjust enrichment and breach of contact.
The conflict originated through an online game called Second Life by the Linden Lab wherein
the players can buy, sell and lease land and other virtual assets through a currency called lindens
which can later be converted into American Dollars.
This case had opened up new doors for discussion on the nature of virtual property and the
disputes regarding virtual acquisitions and transactions. 3
In future when similar problems arise, i.e., disputes regarding any virtual space transactions that
have to be decided in the real world, there must be a link established between the virtual and the
real world. Also the courts must be open to new concepts and laws relating to virtual property.
This is of course the initial step, gradually there needs to be a development in the subject of
Cyber Jurisprudence to deal with such disputes.
For instance if the same case were to be bought before the Indian court, the nature of the
property being land and the application of physical laws, the case would be subjected to the
Transfer of property Act and the Registration Act. However both the Acts do not recognize the
existence of virtual land as an immovable property and thus would not be valid under the law.
In an alternative scenario, if the virtual land is a unit of property arising out of a legal agreement
between the player and the company or between two players, the provision of contract laws can
be applied, it will then conflict with the basic requirement of contracts-‘ meeting of minds’. The
reason behind this is that the parties would be dealing with the unit as immovable property and
not as anything else. If the buyer and seller were to act upon the matter as if they were buying
and selling a piece of land, it would then be appropriate to adjudicate on the dispute by ignoring
3
www.bloggernews.net/11215
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this basic thought and consider it as something else. They would have the psychological
satisfaction of using the unit of land for any purpose and experience both the pleasure and pain
of ownership of the immovable property. It is this basic characteristic that differentiates the
virtual from the real. Sometimes the characteristic features of virtual property can be compared
to an Intellectual Property feature since the way the property is used is a creation in the minds of
an imaginative player. 4
It would thus be inappropriate to treat such a dispute as a Contractual Property or a transfer of
Property Dispute. The copyright laws under Intellectual Property would perhaps be the closest
but even they would not fulfil the ‘Meeting of the Minds’ test. Thus there is a need for rethinking
our concepts in the physical society to match those of the virtual. This forms the first principle in
the development of ‘Cyber Jurisprudence’.
Though there is rapid advancement in cyberspace and immense dependence of digital technology
by man, however the legal mechanism is not evolving fact enough to govern the rapid
developments in this digital age. In the case of Seelan v. Presiding Officer, the Supreme Court
observed that ‘software being intangible is difficult to be codified in legal terms.5
4
5
www.bloggernews.net/11215.
indiankanoon.org/doc/1733870/.
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EMERGENCE OF CYBERSPACE
The term “cyberspace” was first coined by the science fiction author William Gibson when he
used the term to describe his vision of a computer network liking all machines, sources of
information and also people, so that one could move, connect and navigate through a virtual
space. The term cyber actually refers to cybernetics which derives its origin from the Greek verb
“Kubernao” which means ‘to steer’ or in present day ‘to govern’. 6It connotes the idea of
navigating through a space of electronic data and also control which can be achieved by
manipulating those data.
Legal issues relating to the internet in this contemporary world necessitates a new kind of
jurisprudence- cyber jurisprudence. It gives us an analysis of law where there is no land and they
may be virtual in nature and origin. This virtual world would require virtual policies, rules,
contracts, disputes, virtual property- both tangible and intangible, virtual possession and virtual
and virtual court. Cyber jurisprudence establishes a like with the laws and policies as well as the
idea of cyber jurisdiction. It emphasizes the need to recognize cyber rules, laws and policies at an
international level.
The modern jurists have been analysing how to endow the rational pedestal of jurisprudence to
this ruling so as to ascertain the utmost and exact definition of cyber jurisprudence.
Today this is understood as- “The principles of legal issues which exclusively regulates the
internet and cyberspace.”
6
Strate, Lance. "The varieties of cyberspace: Problems in definition and delimitation". Western Journal of
Communication 63 (3): 382–3(1999).
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ISSUES OF CYBERSPACE
The beginning of the 1990’s saw the internet turning into a virtual super market with every type
of goods and services available on the net on different terms and conditions. With the advent of
e- commerce, e-banking and e-advertising the competition of the physical world also affected the
virtual world. This led to the destruction of websites as they were hacked into and a lot of illicit
information became available causing the defamation of highly reputed companies as well as
persons. This also led to many disputes regarding trademarks and copyrights as they were one of
the most commonly infringed upon.
The term cyberspace was first coined when the Supreme Court of America made a comparison
between cyber space and breach of law.7 It was this which led to the division between jurists of
cyberspace. The first group argued that that the laws of the real world could be extended to the
virtual world as well. The other group argues that the traditional laws of the real world cannot be
applied to the virtual world but rather separate laws and policies must be formulated.
The following are some of the major issues faced in cyber jurisprudence1. Multiple Jurisdictions- Due to the large number of internet users8 and the absence of
geographic boundaries in the cyberspace, the cross border transactions of the internet face
legal uncertainty. Due to this, the national laws become less meaningful and almost
impossible to enforce in internet transactions. This also causes multiple overlapping of
jurisdictions and laws which might further lead to a lot of confusion.9
2. Legal Vacuum- Another hurdle for the legislators is the legal vacuum. The legislators
are expected to find solutions to the existing problems in cyberspace; however there are
no model laws that they can base it on. For instance, in 1996 the Utah Digital Signature
Act was passed, it had to be drafted from vacuum. Due to this the legislator finds it
difficult to enact a law for regulating the internet.
3. Problem of Policing- Cybercrimes have become a common phenomenon in the world
today and an ordinary person does not seem to be able to understand the depth of such a
problem. David J Davis, a detective inspector in UK said that when the first internet case
7
Reno v. American Civil Liberties Union, 521 U.S. 844 : 117 S. Ct. 2329 (1997).
Christopher Reed, Internet Law: Text and Materials, Butterworths, London, p.268(2000).
9
Supra n.19.
8
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came up it was difficult to convince the magistrate to issue a search warrant. This lack of
technical knowledge creates a hurdle to the existing problem.
10
Additionally due to lack
of lack of full penetrations, many cybercrimes go unreported.11
4. Expensive Process- To ensure proper cyber protection, the law enforcement must first
have a sound knowledge of the subject and additionally the knowledge must be in tune
with the technical advancement.12 This training however is very expensive, besides the
training the software required for forensic examinations are also expensive. Not only that,
substantial fund be required in all aspects of the investigation.
5. Obtaining Digital Evidence- Another major issue faced while tracking cybercrime is
with regard to obtaining the digital evidence. Goodman noted that-13““not only can
incriminating clues be hidden encrypted and virus laden, but they can be strewn
anywhere in the world.” The current internet specific laws relating to search and seizure
of digital evidence are mostly ambiguous. When the evidence is to be prove in the court
of law two principle situations must be examined. The first is- whether the offence is
committed by the individual’s use of the internet, in which case the concerned individual
is the culprit. The second is- where the remote site holds the evidence of the offence. A
common example is when the content of a website is illegal in any country. These
penetrations can be proved from four sources- the computer, telephone bill, from internet
service providers and from the remote sites.
David J Davis, “Criminal law and the Internet: The Investigator’s Perspective”, Criminal
Law Review Special Edition 49 (1998).
11
Ibid.
12
Supra n.35.
13
Id.,p.483
10
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LAWS REGARDING CYBERSPACE
While cyberspace is was a long developing concept, the internet we know today is only a recent
one which began in the 1960’s. The evolution of cyber laws however began in early 1990’s. The
present section is divided into two parts- cyber laws around the world and cyber laws in India.
Global Perspective
Though the evolution of cyber laws began in the 1990’s, early 1970’s saw countries adopting
broad laws intended to protect individual’s privacy. These laws were loosely based on the
models introduced by the organization for economic cooperation and development and the
council of Europe. The first data protection law was first introduced in Germany in 1970 which
was followed by Sweden in 1973, US in 1974and France in 1978. 14
On October 24 1999, with an increase in the problem of cyber-squatting, the Internet Corporation
Assigned names and Numbers (ICANN) approved the Uniform Domain Dispute Resolution
Policy, for the purpose of resolving disputes regarding domain names. The following five main
points were recognized under this model-15
Apart from the above model another major convention with respect to cyber laws is the
Convention on Cybercrime, also known as the Budapest Convention on Cybercrime or simply
the Budapest Convention. This report given by this convention was adopted by Europe’s
Committee of Ministers at its 109th Session in 2001.
Indian Perspective
The Information Technology revolution in India can trace its beginning in the year 1975, when
the Indian Government decided to take effective steps for the development of information
systems and utilization of informative resources. The National Informatics Centre under the
Electronic Commission/Department of Electronics was the outcome of this view and was
D. Glenn Baker, ‘Trespassers Will be Prosecuted- Computer Crimes in the 1990s’, Vol. 1, CLJ (Computer Law
Journal), 68 (1993).
15
Vivek Sood, Cyber Law Simplified, 230, Tata McGraw-Hill Publishing Co. Ltd, New Delhi, 2001.
14
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assisted by United Nations Development Program (UNDP).16 The formation of National
Association of Software Services Companies in the early 1990s reflects on India’s strength in
this sector.30 Internet in India came in 1995 and after almost 5 years, India gets ready to legislate
its first cyber law.17
Information Technology Act 2000
With the advent of the Information Technology Act in 2000,
18
India became the 12th nation in
the world to enact cyber laws. The United Nations Commission on the International Trade Law
or the UNICITRAL adopted the Model Law on Electronic Commerce in the year 1996 in order
to bring uniformity of law. In India, the Ministry of Commerce Government drafted its first
legislation following the guidelines termed as”E Commerce Act 1998”.19 After a separate
ministry was the legislation was re drafted and titled as “Information Technology Bill 1999”.
This draft was placed in the Parliament in the year 1999 and was finally passed in the May 2000.
This Act provides legal acknowledgement to the transactions carried out through means of
electronic modes or electronic commerce which is an effective alternative to the traditional paper
based and bulky methods of communication. With the passing of this Act certain other
amendments were also made to certain existing Acts.20
They are
The Indian Penal Code 1860

Indian Evidence Act 1872

The Bankers Book Evidence 1891

The Reserve Bank of India Act 193421
After the passing of this Act the next major change in cyber laws in India was the Amendment to
the Act in the year 2008. Due to the criticism faced by the Information Technology Act of 2000,
16
Sherif Kamel, Electronic Business in Developing Countries- Opportunities and Challenges, 173, Idea Group Inc.,
London, 2006.
17
ibid.
18
Yatinder Singh, Cyber Laws, 3, Universal Law Publishing Co., New Delhi, 4th edn., 2010.
19
Sanjay Pandey, Curbing Cyber Crime- A Critique of Information Technology Act, 2000 and IT Act Amendment,
20
ibid.
21
Tapan Choure & Yogeshwar Shukla, Information Technology Industry in India, 98, Kalpaz Publications, Delhi,
2004.
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an expert committee was set up by the government comprising of experts from the IT Industry
and also legal experts. They submitted their report in the year 2005 and in the year 2006 the IT
Amendment Bill was introduced in the Lok Sabha. This Bill was modified and was finally
passed in the year 2008.22
The following were the changes made to the Act where eight new cyber offences were added
Sending offensive messages through a computer or mobile phone (Section 66A),

Receiving stolen computer resource or communication device (Section 66B)

Punishment for Identity Theft (Section 66C)

Punishment for cheating by personation using computer resource (Section 66D)

Punishment for violating privacy or video voyeurism (Section 66E)

Cyber Terrorism (Section 66F)

Publishing or transmitting material in electronic form containing sexually explicit act
(Section 67A),

Child pornography (Section 67B)23
As the technology develops there is a continuous need for cyber law development around the
world. This would further lead to a growing realization among different nations that their laws
must evolve and adapt to the growing needs and development. The substantive as well as the
procedural laws will require a new exposition in the light of the evolving technological
complexities. The main challenge before any court would be to evolve cyber jurisprudence
which is consistent with the laws of the land.
22
23
supra note 31, preface vii.
http://www.neerajaarora.com/it-amendment-act-2008-notified-w-e-f-27102009.
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CASES
With new inventions and developments in the world today, there will naturally come into
existence new crimes; however success is said to have been achieved when there are proper legal
mechanisms to control it. In today’s world, crime is no longer limited to time, space or a group
of people. With the evolution of cyberspace, there are more civil, criminal and moral wrongs. In
the 1990s when the internet was just evolving, there were less than 1000.000 people using it but
today around 500 million people have access to the internet around the globe. Thus there is
growing need for a strong legal mechanism to monitor these crimes. The following are some
cases in India.
State of Tamil Nadu v. Suhas Katti
The present case deals with the posting defamatory and obscene messages about a divorcee
woman on Yahoo message group. Personal e-mails were also forwarded to the victim through a
false accounted created by him. Such an act resulted in the lady receiving annoying phone calls
in the belief that she is indeed soliciting. An arrest was made by the police by tracing the accused
after a complaint was made by the victim. The facts were simple- the accused was a well-known
family friend and proposed to marry the victim however she refused and married another. When
her marriage ended in divorce the accused once again started contacting her and when she
refused, the accused took up harassment through the internet. The defence argued that the emails might have been the ex-husband or the complainant herself to implicate the accused. He
further argued that certain documentary evidence provided was not admissible under section 65
of the Indian Evidence Act. The Court however relied upon the expert witnesses and other
evidences produced and came to the conclusion that the crime was conclusively proved
SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra
This case was India’s first case of cyber defamation where a court of Delhi assumed jurisdiction.
The facts of the case are simple where the defendant Jogesh Kwatra was an employee of the
plaintiff’s company. He started sending defamatory, obscene and abusive about the cooperation
to his employers as well as to different subsidiaries of the company all over the world with the
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aim to defame the company. Thus a suit was filed by the plaintiff for a permanent injunction
restraining the defendant from continuing such defaming acts.
Consequently, the Delhi High Court restrained the defendant from sending derogatory,
defamatory, obscene, vulgar and abusive emails either to the plaintiffs or to its subsidiaries all
over the world. Further, the court also restrained the defendant from publishing, transmitting or
causing to be published any information in the actual world as also in cyberspace which is
derogatory or defamatory or abusive of the plaintiffs.
This order of Delhi High Court assumes tremendous significance as for the first time an Indian
Court assumes jurisdiction in a matter concerning cyber defamation and granted an ex-parte
injunction restraining the defendant from defaming the plaintiffs by sending derogatory,
defamatory, abusive and obscene emails either to the plaintiffs or their subsidiaries.24
Nasscom vs. Ajay Sood & Others
In a famous judgment in the case of National Association of Software and Service Companies vs
Ajay Sood & Others, delivered on March,05 the Delhi High Court declared phishing on the
internet to be an unlawful act, entailing an injunction and recovery of damages. Elaborating on
the concept of ‘phishing’, the court explained that when a person pretends to pose as a legitimate
association like an insurance company or a bank etc with an aim to extract data such as codes,
passwords etc, it will constitute to a form of internet fraud.
The Delhi Court held that even though there are no proper laws or legislations to control
phishing , it is considered to be an illegal act and can be defined under the Indian law as-‘ A
misrepresentation made in the course of trade leading to confusion as to the source and origin of
the e-mail causing immense harm not only to the consumer but even to the person whose name,
identity or password is misused.’ The court held that the act of phishing was tarnishing the image
of the plaintiff.
24
Delhi High Court-12th Feb 2014
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PROPOSED IDEOLOGY
IT Act is considered to be the toothless so there is need to strengthen it as:
IT Act (amendment) Act 2008 reduced the quantum of punishment for majority of
cybercrime. Need to be rectified and increased.

There is need to cover cyber war under IT Act as an offence.

Majority of cyber-crimes need to be made non-bail able offence.

Among the notable suggestions is a duty to assist (DTA), First proposed by Duncan
Hollis (2011), such a duty would impose a requirement to assist and guide victims facing
rigorous and serious harm, to avoid or at least mitigate that harm as much as possible
because as we know that cybercrimes sometimes have a devastating effect on the victim’s
life. A duty to assist would thus, avoid the challenges of attribution: the severity of the
harm, rather than its origin, would determine whether or not assistance is to be provided

Educating the common man and informing them about their rights and obligations in
Cyberspace. The practical scenario is that most people are ignorant of the laws of the
cyberspace, different kinds of cybercrimes, and forums for redressal of their grievances.

The reporting and access points in police department require immediate change. In
domestic territory, every local police station should have a cybercrime cell that can
effectively investigate cybercrime cases and should be provided with updated technology
to combat with hackers of this modern world. There is an imperative need to impart the
required legal and technical training to our law enforcement officials, including the
Judiciary and the Police officials to combat the Cybercrimes and to effectively enforce
cyber laws. Accessibility is one of the greatest impediments in delivery of speedy justice
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CONCLUSION
For the emerging scope of cyberspace, it is important to have a cyber-law enforcing momentum
because cyber-crime has the prospective to destroy each and every aspect of the life as it is easy
to commit but it’s really hard to detect.. Nobody then could really visualize about the Internet or
its devastating effects. Though India has extremely detailed and well-defined legal system but all
the existing laws in India was enacted way back keeping in mind the relevant political, social,
economic, and cultural scenario of that particular time Regardless of the brilliant expertise of our
master draftsmen; the necessities of cyberspace could hardly ever be expected. As such, the
coming of the Internet led to the emergence of numerous sensitive legal issues and evils which
necessitated the immediate change in the current cyber laws to make them more effective and
efficient in reporting of crimes in cyberspace.
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