The effectiveness of a judicial system rests on foundation of regulations which define every aspect of a system's functioning and principally it jurisdiction. A court must have jurisdiction venue and appropriate services of process in order to hear a case and render an effective judgment. Jurisdiction is the power of a court to hear and determine a case. Without jurisdiction, a court's judgment is ineffective and impotent. Such jurisdiction is essentially of two types, namely subject matter jurisdiction and personal jurisdiction and these two must be conjunctively satisfied for a judgment to take effect. It is the presence of jurisdiction that ensures the power of enforcement to a court and in the absence of such power the verdict of a court is to say the least of little or no use. Moreover only generally accepted principles of jurisdiction would ensure that court abroad also enforce the orders of other judicial bodies.



The world jurisdiction generally carries two legal meanings, firstly, it is used to denote the assumption of authority or power of the court over a legal proceeding, and secondly it means the area over which the authority or power of a court could extend. No authority cab be said to have exercised its jurisdiction if it took for a material fact what was not in law that fact, if it proceeded to at it grave and obvious disregard of a material provision of law, if it exercised a discretion without the existence of the situation in which it could be exercised, if it violated the principles of natural justice when the law had not permitted it to do so, and if it gave reasons for its conclusions which could not, in those circumstances, rationally lead them.

The advent of global computer networks has rendered geographic boundaries increasingly porous and ephemeral. Use of the global Internet computer network is growing exponentially. As Internet subscription increases, just as where any sizable numbers of human beings interact, divergences may be anticipated to arise. As the community of Internet users grows increasingly diverse, and the range of on-line interaction expands, disputes of every kind may be expected to take place. On-line contracts will be breached, on-line torts will be committed, on-line crimes will be committed. Although many of these disputes will be settled informally, others may require prescribed mechanisms for dispute resolution.

The whole trouble with Internet jurisdiction is the presence of multiple parties in various parts of the world who have only a virtual nexus with each other. Then, if one party wants to sue the other, where can he sue? Traditional requirements generally covers two areas- firstly, the place which the' defendant resides, or secondly, where the cause of action arises. However, in the context of the internet, both these are difficult to establish with any assurance. Even a childishly simple transaction can give rise to a mind-boggling issue of jurisdiction on the Net.

Issues of this nature have contributed to the complete confusion and contradictions that plague judicial decisions in the area of Internet jurisdiction. Considering the lack of physical boundaries on the Internet, is it possible to reach out beyond the court's geographic boundaries to haul a defendant into its court for conduct in "cyberspace"?

It is worth examining the decision in Cybersell, Inc. v. Cybersell. Inc as a typical example of a fact-situation involving a conflict over jurisdiction. The case involved a service mark dispute between two corporations, one at Orlando and another at Arizona. The court had to address the issue of whether the mere use of a web-site by the Florida corporation was sufficient to grant the Court, in Orlando, jurisdiction. The Court answered the question in the negative, focusing on traditional analysis established by the US Supreme Court concerning the due process aspects of personal jurisdiction: "it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." The Court rejected the plaintiff's argument that by employing a web page, without more, a web publisher was subject to jurisdiction in the plaintiff's forum. The Court also rejected the plaintiff's reliance on the "effects test", holding that the test does not apply with the same force to a corporation as it docs to an individual "because a corporation dues not suffer harm in a particular geographic location in the same sense that an individual does.

The earliest reported decision is Pres-Kap, Inc. v. System One. Direct Access, Inc which involved electronic contacts through a computerized airline reservation system the plaintiff owned and operated a computerized airline reservation system. The computer base for the system, as well as the plaintiff's main billing office, was in Florida. A branch business office operated out of New York. The defendant, a New York corporation, owned and operated a travel office in New York. The two parties negotiated a lease contract in New York. The breach of which was the subject of the lawsuit. The court found only two contacts between the defendant and the forum stale Florida, namely that the defendant forwarded lease payments to a billing office in Miami, and that the defendant's computers made electronic contacts with the plaintiff's computer base in Florida. Citing Burger, King Corp. v. Rudzewich, the court found that a contract with an out-of-state party alone could not establish jurisdiction. That left only the electronic contacts for the court to consider. The Florida Appeals Court held that electronic contacts with a computer database located in the forum state were insufficient to establish personal jurisdiction-Thus, the defendant did not purposefully avail himself of Florida's jurisdiction, and the first prong of the test failed. In addition, the court warned about the unfairness of allowing jurisdiction where the only contacts are between computers.

For jurisdiction purposes, web sites are split into two groups: passive and interactive. Passive sites provide information in a "read only" format, Interactive sites encourage the browser to enter information identifying the browser and/or providing background on the browser's interests or buying habits. It is no surprise that courts arc more willing to find that a web publisher who solicits information about the forum's residents is purposefully availing itself of the forum's benefits than a publisher who simply provides information about the publisher, its products and services.

In a trademark infringement case similar to Zippo, American Network, Inc. v. Access American/contents Atlanta Inc, a Georgia defendant was hauled into a New York court. A New York plaintiff sued the Georgia defendant for trademark infringement and unfair competition in the U.S. District Court for the Southern District of New York- The plaintiff, a provider of similar consulting services to those provided by the defendant, claimed the mark used by the defendant, ," infringed the plaintiff's mark . New York's long-arm statute includes a provision for jurisdiction over an out of slate tortfeasor when harm is felt within the state if the defendant has reason to expect in stale consequences and the defendant derived substantial revenue from interstate or international commerce. Since the plaintiff's business was located in New York, and the defendant was aware of such, it was reasonable for the defendant to expect that the publication of the offending mark on the Internet would' result in harm suffered in New York, The court, looking further to due process, stated that the web page alone would not necessarily have been enough, but that additional contacts with six New York subscribers to the advertised services established purposeful availment. Additionally, the court held that those subscribers evidenced the defendant's efforts to market his services in New York, making a New York court appearance a reasonable expectation. Since marketing was the basis for the cause of action, the defendant's on-line actions were found to be directly related to the complaint.

Passive activity is considered a "posting" of information, lacking interaction and is typically an advertisement on the Web. As mentioned earlier, one of the first federal cases deciding whether an advertisement posted on a web site is sufficient to confer jurisdiction over an out-of-state defendant was Inset Systems, Inc. v. Instruction Set, Inc, This case was based on a claim of trademark infringement, but it yields a different finding of personal jurisdiction. The alleged infringement involved the Massachusetts defendant's use of the word "Inset" in its Internet domain name and in a toll-free telephone number. The only contacts the defendant had with Connecticut were its web site and a toll-free telephone number, both of which advertised the defendant's services. The Court stated that the defendant directed its advertising activities on the Internet and its toll-free number to all states. Held that the defendant was subject to jurisdiction in Connecticut because its advertising activities were purposefully directed to Connecticut. Taken one step further, this would suggest that advertising over the Internet confers jurisdiction in any state or country where it could be accessed. The Court concluded that since the defendant "purposefully directed its advertising activities toward this state on a continuing basis ......" it could reasonably anticipate the possibility of being hauled into court here. To avoid such an untenable result, one should keep in mind the particular facts of the Inset case, namely that jurisdiction was established in Connecticut over a Massachusetts corporation, implying that the reasonableness prong played an important role.

The Compuserve case indicates just how difficult jurisdictional analysis may be when computer networks are at issue. However, no matter how perplexing the determination of minimum contacts has been with regard to a proprietary computer system, its application to Internet activity may prove to be even more arcane. The court in Compuserve v. Patterson properly declined the question of whether the jurisdiction would be proper wherever the defendant's software happened to land, yet this question is relatively simple in the context of a proprietary system where the subscribers are known to the system owner. By contrast, the Internet is owned by no one, there are no subscription fees, and no reliable records of who is using the network, or of where they may be located. This poses severe problems for a due process analysis based on territorial contacts; anomalous results may be expected because the network's structural indifference to geographic position is incongruous with the fundamental assumptions underlying the International Shoe test.

Much of the Supreme Court's jurisprudence in this area appears to contradict the essential nature of the Net. Where jurisdiction from Internet contacts is at issue, physical presence of the defendant within the forum state will likely be the exception rather than the rule -- cybernauts do physically reside somewhere in real space, and if the defendant cybernaut physically resides within the forum, the law seems well settled that its courts can exercise jurisdiction over her. However, given the far-flung nature of the Net, far more defendants will reside outside any given plaintiff's preferred jurisdiction than will reside within it. A significant number of on-line disputes will therefore require an International Shoe analysis.

Thus, personal jurisdiction over an Internet user will most frequently be premised on the user's contacts with the forum. Given the nature of on-line transactions, those contacts will in many cases be solely Internet-based contacts. As described above, the "minimum contacts" test requires the tribunal to inquire whether the defendant cybernaut has purposefully availed herself of the benefits of the forum state, such that she might reasonably foresee being haled into court there. In particular, pecuniary gain from the forum is assumed to signal that the defendant has "benefited" in a concrete way from the laws and public services of the forum.

However, one must wonder how reliable an indicator pecuniary gain will be as to minimum contacts via Internet. At the present time, the majority of Internet users probably derive no pecuniary benefit from their on-line activity, yet their on-line activity may still give rise to a variety of legal disputes. Personal communications and discussion groups may be breeding grounds for a wide range of constitutional, contractual, and tort claims, but in the course of conduct that leads to the claim, little money changes hands. This situation is of course already changing; there is money to be made in cyberspace, and entrepreneurs are scrambling to claim their share. Clearly, as on-line commerce grows, many businesses will benefit financially from transactions conducted via the network.

Yet the business activity these on-line vendors conduct will, for the most part, not be directed toward a particular physical jurisdiction. Businesses will frequently be ignorant of a customer's physical location, and customers equally ignorant of the business. If the transaction results in shipment of physical goods, then this veil of ignorance may be rent; the goods must end up somewhere. But the unique aspect of Internet commerce is that the Net allows not only negotiation and payment on-line, but also delivery of goods if the goods are digitized information products: software, pictures, movies, music, novels, data, and the like. Information-based services such as systems monitoring, education, data processing, or consulting can also be offered wholly on-line. Payment by credit card may reveal the customers' identity to a business, but not her location, and payment using anonymous "digital cash" is even less traceable.

Personal jurisdiction has been a confusing legal issue since at least the advent of the telecommunication and information technology, and jurisdictional dilemmas have arisen with successive waves of technology. However, in the case of the Internet, such jurisdictional overreaching may threaten the most important features of this new medium. People familiar with the Internet know that one of the network's great benefits is that the average citizen can participate for a relatively small investment. In the past, communicating with or catering to a national constituency required heavy capital outlays; the Internet makes nationwide communication and commerce accessible to citizens for as little as a few hundred rupees. But the prospect of multi-jurisdictional liability may very well elevate the price of involvement beyond the average citizen's reach. The average user simply cannot afford the cost of defending multiple suits in multiple jurisdictions.

REFERENCES:

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2.(Black Law Dictionary).

3.(Christian M. Rieder US. Subject matter jurisdiction for copy right infringements on the internet).

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(Author is a lawyer of cyber laws in Pakistan)