Introduction to the Structure of the Internet and

Jurisdiction-Related Issues

What laws apply to the internet? As laws of each country are different, to know what law
applies we need to first decide where the internet is located.

Is there any identifiable location for the internet? Are there any geographical locations
where it can be said to be concentrated? While the internet is visualized to be network fairly
spread out all over the globe and is not understood to be associated with any identifiable
‘location’, the reality is quite different – the internet has a very strong territorial connection
with the United States. While internet cables and connections are spread across the globe, a
majority of the entities in the network – such as servers, hosting service providers and
domain name registries, major search engines and primary operations of monolithic internet
companies such as Google, Facebook, Twitter, PayPal, Amazon are also located in the US,
which may in many ways have a bearing on legal issues affecting a business.

Still almost each country in the world has come up with its own set of laws that govern
activities on the internet and other information systems. India passed its own information
technology-related legislation in 2000, and it has also amended and introduced IT related
provisions in various other statutes as well.

Today, as various operations and parts of business have been going online, information
technology law has become very relevant for entrepreneurs and businesses in general.

Due to the international or cross-border nature of online activities, preliminary issues that
must be answered are – which nation’s legal system will be applicable? Which nation’s
courts may exercise jurisdiction with respect to a particular action? These questions impact
how the entity frames various policies and contracts relating to use of its site by users,
content creators and third parties, and the legal strategy with respect to internet-related
activities for a particular organization. Hence, before getting into a discussion on the above
issues, we will first discuss the structure of the internet and the location of various
participants which constitute the ‘internet’.

a. Jurisdiction related issues and the structure of the

internet

Before moving onto the issues arising pertaining to jurisdiction, an understanding of the
structure of the internet is important.

i) Structure of the internet – where are websites located?

(​Those who already understand the technological framework and structure of the
internet may skip this discussion and move to the next section.)

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 This part explains the structure of the internet - a website is registered with a
Registry ​by a particular entity (​Owner​), who may be located anywhere in the
world. There is only one registry for a particular kind of domain name. The
registry is identified by the top-level domain (​TLD​) of any website. The top-level
domain is identified by the letters at the end of the website, for example,
google.com has ‘.COM’ as the top-level domain. Other examples of TLDs are.net,
.edu, .tv, .biz etc. These are known as generic TLDs, and their registries are
located in the US.

Similarly, country code TLDs (​ccTLDs​) have been created for different countries,
and they are maintained and administered by domestic body within the country to
which they pertain. For example, .in, .uk, .de, etc. are managed by India, UK and
Germany respectively.

Owners cannot register websites directly with the Registry, but must approach
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through a registrar (​Registrar​). For registration of a domain name, a user has
the option to choose from various Registrars who are registered with a body called
Internet Corporation for Assigned Names and Numbers (​ICANN​).

ii) Location of online content

Say, there is a major deals site called ‘deals lawyer.in’ - does the ‘.in’ in its
domain name imply that the content is hosted in India? No - it simply means that
the .in registry (and not the content on the site) is maintained by the Indian entity
that manages .in domains (National Internet Exchange of India or ​NIXI​). The
content could be physically hosted on servers anywhere across the world, and
domain name may be owned by an individual or entity belonging to any country.

The content for a particular website is hosted on ‘servers’ of the hosting services
provider. For example, Hostgator, one of the largest web-hosting services in the
world, has its servers based in Houston and Dallas in Texas, US. In addition, it
also uses servers from a service known as CloudFlare, which enables users across
the world to access websites from servers in different geographical locations.

From the perspective of a regulatory authority, a user of a website or any third

party, the location of the content he plans to access may not be predictable in
advance as it can continuously vary. Hence, location of the intermediaries is a
more practical solution for determining jurisdiction.

iii) Why is the structure of the internet important?

The structure of the internet is relevant for the following purposes –

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Internet service providers and hosting providers often provide services of registrars as well. For example, BigRock
and Indialinks act as registrars and also provide hosting services. Owners need not use the hosting services
provided by the Registrar and are free to use hosting services from an independent provider such as Hostgator.

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 ● Determining the territorial location of the content, or the location of the
entity which is hosting the content (e.g. the relevant website or the social
media network). This determination is relevant because as per the law of
most countries, the location of the wrongdoer, or the ‘place’ where a wrong
is committed are locations where legal proceedings can be initiated against
the wrongdoer.
● Determination of who the intermediaries (that is, entities which enable users
to ‘access’ the content) are, and where they are located. Intermediaries are
required to comply with information technology laws in the country of their
operation. Irrespective of where the content is located, access to the content
is provided by intermediaries, who are subject to the law of the state where
they are based.

Increasingly, any malicious activity on websites is being tackled by approaching

the relevant intermediaries who enable ‘access’ to the content, as that is more
practical. Determination of the territorial location of the specific offending content
can be very difficult (and the advent of cloud computing has added to this
complexity).

Example 1

Consider an Indian business which sells products in India as well as in international

markets, including the US. Imagine that a US-based competitor of an Indian business
has a huge fan following on a recent micro-blog site called Fleeter.com (which is like
Twitter), and posts a derogatory status message, which is extremely harmful for the
sales and commercial reputation of the Indian entity. Fleeter does not have an entity
situated in India. What action can the Indian business take?

Analysis

Legal proceedings that can be initiated in respect of a particular act have typically
depended to a large extent on the location of the wrong-doer – in this case, it would be
based on the location of the entity operating the website (or the servers hosting the
website).

Therefore, if information is accessible in a location which is outside the country of

operation of that entity, it may be extremely difficult to regulate the content or actions
taken on the website– since neither the micro-blogging website nor the US competitor
have any operational connection with India (apart from the fact that their content is
accessible in India).

It may be easier to regulate larger internet companies such as Google and YouTube
because they may have an Indian entity, servers in India or a long-term commercial
interest in India, and therefore they may not encourage violation of Indian law or the
rights of Indian users. With respect to smaller companies, or others which do not have
strategic interest in a particular location, it can be very difficult.

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 Note​: I​ n such cases, one of the possible ways to tackle the problem (this may require
basic knowledge of the law of other jurisdictions in some cases, particularly US law) is
for the Indian business to send ‘take down notices’ to the website, or the server, registry
or the hosting services provider, as the website is registered with the “.com” registry
(the “.com” registry is based in the US) (​we will discuss takedown notices in more detail
later​).

Example 2

Imagine that a Russian citizen writes something defamatory about an Indian author
(who is world-famous for his books), which is published by an American news site which
is accessible globally.

If the Indian author wants to sue the Russian, which country’s courts should he
approach? The Indian author would ideally prefer suing the Russian (and the American
news site) in an Indian court, which is easier for him logistically. Can he sue in India, or
does information technology law require him to sue in another jurisdiction, such as:

● Russia (because the person who wrote defamatory content resides in Russia), or
● US (because the news site is in the US), or
● in any other country where he can prove that his reputation has been damaged?

Example 3

If an Indian citizen bought a video camera online from Amazon (in US) which turned out
to be defective, where should he sue to recover his loss? Would the situation be any
different if he had purchased the camera on eBay US from a Chinese seller?

As evident from the examples above, a jurisdiction issue typically arises in transactions
involving citizens and computer systems located in multiple countries, that is, “In that
courts of which country/ state can the business initiate legal proceeding?” Or, “In which
countries can users sue the business?”). The business would like to sue or be sued in its
home turf as far as possible (we will discuss how this goal can be achieved in this
chapter).

Another important consideration is whether it is practically feasible for the average user
to initiate a legal proceeding. For a business which maintains an online presence and has
a global audience, it is important that:

1) it is able to prevent disruptive or mischievous actions on its website (or other

forms of online presence) from entities across the globe - such as unauthorized
tampering of the website and
2) it is able to prevent itself from being sued for a wrongful action in potentially
every country where its content is accessible (as far as possible).

The question of jurisdiction is also important because an entity selling products/ services
online to an international market may have to comply with regulatory laws of multiple

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 jurisdictions, including locations where it sells its products (or where its customers are
based), irrespective of whether or not it has a direct business presence (say, by way of
an office) or so.

Due to the cross-border nature of internet and e-commerce, these situations have
started arising very frequently.

Information technology law textbooks written by English and American authors point to
numerous cases where it may be difficult to identify whether courts of a particular
country can exercise jurisdiction with respect to a particular action at all, or which one of
many countries can legitimately exercise jurisdiction in a particular instance.

However, for a working understanding, in a majority of the instances the jurisdiction of

courts and the country in which legal proceedings can be initiated for a particular action
can be understood in light of the ‘type’ of legal claim, as follows:

● For contractual claims (that is, claims arising out of a sales or service
agreement), an entity can contractually specify (in the Terms of Service or Terms
of Use section), the country where legal action can be initiated. It may state that
any claims may be initiated exclusively in the courts of that country only. For
preventing ambiguity, the user must be notified of the terms immediately before
the sale and required to agree to them (​see the discussion on browsewrap
contracts in following chapters for more details on this)​ .

Any business which sells products or services on the internet can include in its
‘terms of service’ (or a similar document) a clause stating that legal proceedings
can only be initiated in the country where the business has its operations or
where it is incorporated.

● With respect to regulatory compliance (for example, for an e-commerce website),

a business will not be able to ‘select’ the legal system which applies to it. Apart
from complying with the legal system where it is incorporated (or where it has
operations) it may also have to comply with the law of other countries where it
operates or maintains any kind of presence. Maintaining presence includes selling
to particular markets without necessarily maintaining physical presence through
an office, etc. in such markets. What about businesses which merely convey
information to users in other countries and have no presence? For the answer to
this question, see the discussion below under the head ​Jurisdiction with Respect
to Interactive Websites.​

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● Criminal Law claims - ​The IT Act applies to any offence or contravention
committed outside India by a person (irrespective of his nationality), if his actions
involve a computer, computer system or network located in India.

In addition, Indian law will apply to a person who has committed any action using

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See Sections 1 and 75, Information Technology Act, and Section 4, Indian Penal Code.

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 the internet, which qualifies as an offence under the Indian Penal Code (e.g.
credit card fraud, data​ ​the​ft, etc.), if the person is:

● an Indian citizen (irrespective of which country he resides), or

● a foreigner who has committed the offence in India, or
● if the offence targets a computer resource located in India.

Jurisdiction with respect to interactive websites

Are websites which do not have physical presence in India amenable to the jurisdiction of
Indian courts? Indian courts have in some instances claimed jurisdiction over entities which
do not have any operations or presence in India except for allowing Indian viewers to
browse their website, if the website is not a mere static website but an interactive one. The
Delhi High Court has made some observations which provide useful guidance in this regard.
It has held that where the website was an ​interactive​ one, as opposed to one merely
conveying information (e.g. a static website) – therefore, where the target audience and a
large consumer base of the website was located, the court could exercise jurisdiction over
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the matter, irrespective of the location of the defendant. The level of interactivity of the
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website was held to be of vital importance.​ ​In another case of the court clarified that
merely accessing a website in Delhi would not provide jurisdiction​ to Delhi courts to try
disputes. Rather, it has to be shown the use of the website by creator of the website
was ​with intent to conclude a commercial transaction​ with the site user, and such use
resulted in injury or harm to the user. In another case of the court5 it was ruled that mere
hosting of web page on interactive site would not be sufficient to confer jurisdiction on the
Delhi High Court where the defendant does not carry on business. It was also held that the
interactivity of the users on the site would not be sufficient to provide a cause of action for
a dispute in a jurisdiction where the defendant does not enter into commercial transaction.

The Delhi High Court appears to point to two factors that can enable a court to exercise
jurisdiction over an entity which conveys information through its website to users within the
jurisdiction of that court (even though the website may not have physical business presence
in that location):

1) The level of interactivity of the content for the users who access the website through
a particular jurisdiction. The court may have used the expression ‘interactivity’ in a
broad sense, to include situations where a website is responsive or customizes itself
to a specific user.

2) The intention to enter into a commercial transaction with a user in that jurisdiction.

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​(​India TV​) Independent News Service Pvt. Limited v. India Broadcast Live LLC And Ors​, 2007 (35) PTC 177 (Del.)
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​Banyan Tree Holding (P) Limited v. A. Murali Krishna Reddy and Anr, Delhi High Court.
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​News Nation Networks Private Limited v News Nation Gujarat and Ors, Delhi High Court
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