The States of Internet Jurisdiction

LONDON: Traditionally, legal frameworks and jurisdiction concerning matters relating to finance, economics, and security have traditionally operated within the boundaries drawn out by nation states. However, the increasing importance of the Internet has complicated matters for such legal frameworks in areas such as cross-border transactions, redress to situations of rights, transference of national laws to different jurisdictions, and dispute resolution mechanisms involving two or more existing national jurisdictions. The challenge faced in many of these cases is the application of relevant national laws in issues concerning the Internet. Many have argued that the Internet needs to be treated as its own jurisdiction, one that cannot be regulated by offline laws and rules.

The Jurisdiction of the Internet

The current state of Internet jurisdiction now operates in the environment where paying heeds to geographical and physical boundaries are often ineffectual. This in turn has consequences in diminishing the sharp distinctions between the boundaries of national jurisdictions, blurring the claims to the different laws that apply within a national context. The world outside the Internet, if we care to make such a distinction, is clearly mapped into the application of different national laws, neatly situated within the political and geographical boundaries of countries, the Internet, clearly is not.

The Challenge in Creating a Legal Framework for the Internet

Treating the Internet as a separate jurisdiction does nothing to alleviate the complications and fails to acknowledge the very real-world existence of the components that interact on the Internet, namely, individuals, organizations and institutions, machines, and even physical infrastructure, all operating within one or more national jurisdictions. A working solution to aforementioned problems suggests a greater cooperative effort to harmonize legislation within national jurisdictions and incorporate the different stakeholders into this process of harmonization.

This argument also extends to the neutrality of access to the due process of law and equal access to justice amongst countries that either don't have the resources or the policy interests to develop a framework for Internet jurisdiction, and provide a more accessible routes for entities who may want to turn to the law and could not do so within specific national jurisdictions.

However, a regional framework would help alleviate the dangers of information impoverishment within countries by ensuring the wider flow of information through the regulatory role of the regional power, that in essence would provide the legal mechanisms for the entire region in the framework, and thus help support the “sphere of the Internet” within the region.

The Role of Online Dispute Resolution

Online Dispute Resolution (ODR) can be explored as an alternative dispute resolution mechanism across several national frameworks. The varieties of approaches to ODR, differing across types of technologies that allows for dispute resolution that extends beyond “two-party transactional models” to one that has a more plural approach and considers the diversity of stakeholders. ODR has been commonly defined as “the use of information and communications technology to help parties manage, transform and resolve their conflicts” (as cited in Leigh & Fowlie, 2014, p. 107). The value of ODR lies in the accessibility of the platform to various entities, including individuals and civil societies. ODR has delivered resolution over disputes concerning intellectual property, legal, commercial or insurance.

Applying ODR to the context of a regional Internet jurisdiction framework, especially in the context of the SAARC, there is apparent great value in allowing the regional power, to help build a plural and cooperative environment that allows a whole range of entities ranging from internet based companies, or individuals who carry out internet based transactions. Additionally, more practical factors such as cost and efficiency of time also add to the overall lucrative support that ODR can offer a regional framework. Within the context of developing nation states, not only does that encourage the entity to take the right path to redress and litigation, but also improves knowledge transfer, and the protection of entities especially individuals who may be vulnerable to exploitation in a market that is increasingly become connected.

ODR in India

ODR in addition to other ADR mechanisms have proved to be effective in India. ODR helps address disputes in volume, in quick successions, and at very low costs all plus points and unheard of in India’s judicial landscape. Additionally, ease of access and cross-border exchange offer the very dispute resolution platform that many stakeholders keen on making the most of India’s economic boom, would have looked for as a platform for redress in the national legal system. ODR in India is not without problems, technological limitations, matters of trust and dependence upon lawyers to name a few means that the development of the mechanism will be slow.

(Tania Gupta is an alumna of the Oxford Internet Institute at the University of Oxford. Tania's research interests range from the wider impacts of inequality in digital access and use and the social impact digital technology in the Middle East).