When the case of Pennover v Neff

When it comes to crimes, the internet has posed various
challenges to the notion of jurisdiction.1 In
the borderless world of the cyberspace, the difficulty of which law is appropriate
constantly emerges before the governments, legislatures and judiciaries2
because these crimes may involve more than one country. Internet content
regulations have started to be implemented by numerous countries to websites
outside their territories. A country should be capable to regulate the crimes
that occur that influences their country, which means jurisdiction plays a
vital role. A country may be compelled to block the website if they do not have
the jurisdiction to regulate the content. In Malaysia, cybercrimes are essentially
governed by the Computer Crimes Act 1997 (‘CCA’) (especially in regards of
controlling unauthorized access), the Communications and Multimedia Act 1998
(‘CMA’) and the Data Protection Act 2010(‘PDPA’).3 Due to scarcity of national borders, it is an endless
effort to manage cyberspace, especially when it comes to jurisdiction. For
example, all the members of an online forum in the United Kingdom are composing
posts from the UK Internet Service Providers (ISPs). However, the activities of
users may not only occur in the UK due to the forum’s worldwide accessibility. We
try to build national boundaries when a problem arises in cyberspace, to determine
whose laws should apply. By doing this, enforceability becomes immensely uncertain.
4The US Supreme Court in the case of Pennover v Neff 5
held that in the operation of personal jurisdiction over non-residents, the justice
clause in the constitution has restrained the states. The court also further noted
that over persons and property inside its domain, every state enjoys exclusive
jurisdiction and dominance; and beyond its territory, no state can apply direct
jurisdiction and power over persons or property.  Generally, in a cross-border dispute, the primary
issue that a court will examine is whether or not it has the jurisdiction to settle
the conflict.6 The type of jurisdiction a
court must have are both subject matter jurisdiction as well as personal
jurisdiction, which is jurisdiction over the type of dispute involved and
jurisdiction over the parties concerned in the dispute respectively. In
practice, it plainly means that a plaintiff cannot turn to family court in regards
to an intellectual property dispute in terms of the subject-matter
jurisdiction. Proceedings may also only be commenced by a party at a
suitable court level; on an initial level, one cannot normally turn to the
highest court of state. However, the principle of personal jurisdiction can
give rise to more complicated issues.The Government in Malaysia have run into numerous severe
challenges due to these cyber-related risks, even the law enforcement agency encounters
challenges in preserving law and order. Crimes executed virtually through
Internet online are called cybercrimes. This means that the crimes committed
could extend to other countries, which may be beyond the Malaysian jurisdiction.
Loopholes in present laws, economic advancement, political stability and
social/ racial welfare are some of the difficulties that was formed by swift
and in some cases, unrestrained ICT development.  Problems of jurisdiction emerges and the new
millennium law enforcement agency is now confronted with the responsibility of
enforcing law in cyberspace that goes beyond borders. 7
Besides, since each particular country
have different laws, investigating cross border crime can be deemed to be quite
problematic. The significant hindrance encountered by investigators include selecting
an appropriate jurisdiction to charge the offender.Section 9 of the Computer Crimes Act 1997 provides
that the provisions in this Act shall have effect within and outside Malaysia
in relation to any person, regardless of nationality or citizenship. If an
offence was committed outside Malaysia, he will be handled as though the
offence was committed in Malaysia. This Act would also apply if the computer,
program or data was in Malaysia or capable of being connected to or sent to or
used by or with a computer in Malaysia in association to the offence. Difficulties may arise in enforcing the provision to
hackers who lives outside Malaysia even though this section has given vast authority
to the enforcement unit. A particular country’s jurisdiction may be intruded or
hindered. For example, if the offence was committed in the United Kingdom and
the offender was tried in Malaysia, this would be like such that regarding the
laws in the United Kingdom to be pointless. The question arises whether
Malaysian law is so powerful that it overrides the laws of the United Kingdom
when the offence is committed there. The offender should at least be tried
there if he committed the offence there. However, a common-sense knowledge indicates that
before the court can claim any jurisdiction to try the act as an offence under
the CCA 19978, there must be at least
some linkage to Malaysia. Some impediments are that, due to the struggle in acquiring
evidence by reason of the nature of the Internet and how effortless it is in
faking identities and even locations, many such laws have been rather unsuccessful.
For example, where the offenders use fake identities or cover their tracks so
that the authorities cannot find out where they are committing the crime from,
it would cause many problems in determining which country’s jurisdiction should
apply.  Also, the judges and the police
force seem to have inadequacy of resources and technical knowledge which causes
another complication as well. Section 4 of the
Communications and Multimedia Act 1998
provides no matter within and outside of Malaysia, that this Act and its
subsidiary legislation shall apply. This Act and its subsidiary legislation
shall apply to any person beyond the geographical limits of Malaysia and her
territorial waters, and notwithstanding subsection (1), if such person— (a) is
a licensee under this Act; or (b) contributes suitable facilities or services
under this Act in a loaction within Malaysia, the Act shall apply too.  The flaw in the section is that almost similar to that
of Section 9 of the CCA 1997 in the sense that if, for example, an act was
committed in the UK, the offender has to be brought back to Malaysia to be
tried, which would waste time and costs. Legislation and regulations’ impacts
are territorial in nature. There may not be efficient control when an act is
done beyond the jurisdiction.9 It
seems that if an offence was carried out outside of Malaysia, the appropriate
law to be used should be the law of the country. However, bringing the offender
back to Malaysia to be tried may interfere with that country’s jurisdiction in
the sense that the offence was committed there, hence the offender should be
tried there. Having cooperation at the international position so that controlling
online content can be more efficient is one of the methods to overcome this
issue. The flaws of the territorial impacts of national regulations should be capable
to be covered by worldwide regulations. Section 135 of the
Personal Data Protection Act
provides for the jurisdiction to try offences. Sessions Court shall have
jurisdiction to try any offence under this Act and to impose full punishment
for any such offence under this Act notwithstanding any other written law to
the contrary.The clear problem with this section is that since the
Sessions Court only has the jurisdiction to award pecuniary claims of a maximum
of RM250k10, thus if a person commits
like multiple crimes contravening Personal Data Protection Act and the total
punishment is over RM 250k, it is not logical to say that Sessions court still have
jurisdiction because if the offender committed three crimes and the punishments
were each punishment are RM100k, RM100k and RM200k respectively, then the
Sessions Court would not have the jurisdiction anymore. Thus, it would be
unfair if a limitation as such is applied in such situation as the wrongdoer
will not get the adequate and appropriate amount of punishment that should be
put onto his burden.Also, under Malaysian jurisdiction, although there are
punishments for different offences under this Act, the remedies provided under
the Act are also limited: there is no explicit right of a data subject to seek
a civil claim for noncompliance or violation of the law as the Commissioner is
not authorized to order remuneration for damage to data subjects. Violation of
data protection law in Britain and Hong Kong are subject to legal proceedings
under both criminal and civil law and anyone who sustain any damage because of
the breach would be allowed to file a civil suit and claim remuneration
for such damage11. The law in these
jurisdictions differ with ours in this manner and which we should take into
consideration to apply the same.  

1 Alisdair
A. Gillespie; Jurisdictional issues concerning online child pornography, International
Journal of Law and Information Technology, Volume 20, Issue 3, 1 September
2012, Pages 151–177

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2 Jurisdiction
In The Cyberspace Commercial Law Essay. Retrieved from assessed on 23 Dec 2017

3 Dr Duryana Mohamed.
INVESTIGATING CYBERCRIMES UNDER THE MALAYSIAN CYBERLAWS AND THE CRIMINAL
PROCEDURE CODE: ISSUES AND CHALLENGES

4 Jessica
Chapman


assessed on 23 Dec 2017

5 95 U.S. 714
(1878)

6 Dan
Jerker B. Svantesson An introduction to jurisdictional issues in cyberspace

7 DSP
Mahfuz Bin Dato’ Ab. Majid Cybercrime
: Malaysia 

8 Janaletchumi
Appudurai. Computer Crimes: A Case Study of What Malaysia Can Learn from
Others? Journal of
Digital Forensics, Security and Law, Vol. 2(2)

9 Izwan
Iskandar Ishak. Regulating
Online Content. 30th April 2007

10 Section
65 of the Subordinate Courts Act, 1948

11 Aug
2010. The Malaysian Personal Data Protection Act 2010: A
Brief Overview 

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