The definition and classification of Internet disputes.

The problems of defining their jurisdiction.

 

M.Sh.Alpeissova

The Master student of 2nd course

Faculty of International Relations

Specialty of International Law

Al-Farabi Kazakh National University

Scientific Adviser:

T.K.Erdzhanov

Candidate of Juridical Sciences, phd

 

“As long as different countries have different laws

and cultures, there are no good principles for jurisdiction.

Only less bad ones. Every nation wants unity,

 but no nation wants to give up any of its traditions.”

Carlen-Wendels. [1]

 

Keywords: Internet-disputes and offences, cyberspace, defining jurisdiction, domain disputes, electronic money and commerce, data protection.

Abstract:

The article considers the definition of cyberspace, classification of Internet disputes depending from different spheres of activity of Internet-users. Also it includes problems of defining the jurisdiction of disputes on the Internet area. The author analyzes the main problems of the defining jurisdiction on the Internet-disputes, and which measures should be taken.

 

The quantities of the Internet users are growing every day. Nowadays it’s impossible to realize our life without Internet: we use mail, social websites, Google, different opportunities of Internet not only in private purposes but also at work or business. That’s why with the growing of Internet users and their activity all over the world there became a lot of kinds of offences in cyberspace in different areas. For example, electronic commerce, spam, domain disputes, protection of copyright and intellectual property and so on.

First of all, it should be defined what are the cyberspace and Internet dispute and its indications. Right now there is no one common legal definition of the cyberspace or Internet but we can use the definition which was given by Supreme Court of USA that “cyberspace is the unique environment which isn't located in geographical space but available to everyone in any point of the world, by means of Internet access.” [2] Internet is available in any country to every person. The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite (TCP/IP) to link several billion devices worldwide. It is an international network of networks that consists of millions of private, public, academic, business, and government packet switched networks, linked by a broad array of electronic, wireless, and optical networking technologies. The Internet carries an extensive range of information resources and services, such as the inter-linked hypertext documents and applications of the World Wide Web (WWW), the infrastructure to support email, and peer-to-peer networks for file sharing and telephony. [3] That’s why I can assume that Internet dispute it’s the dispute or offence or law-breaking in any sphere between Internet users exactly using the Internet, even the consequences may be in real life, not in the cyberspace. So, firstly we should have an Internet user, secondly act of offence or dispute, thirdly administrative or criminal consequences and finally, defining jurisdiction and court’s decision. According to above mentioned, that’s the main indicates of Internet disputes.

Secondly, it’s necessary to note the classification of Internet disputes. It will be given the main of them:

·                       Domain disputes - protection of copyright on the Internet is the cornerstone of this type of dispute. Domain disputes are often connected with illegal use of a domain name similar to the trademark (a sign service) of other person. Also domain disputes can be connected with protection of honor and business reputation of other person if the name of a domain name is for someone offensive.

·                       The disputes following from protection of copyright and related rights - these disputes are connected with illegal use in worldwide network of objects of copyright and related rights. Special complexity is represented by cases when objects of copyright and related rights are used through system a torrent tracks, being web reference bases on files which are in computers of users of such trackers.

·                       The disputes connected with using of electronic money. Characteristic example of this type of disputes is plunder of money of Internet users from their electronic purses.

·                       The disputes following from the operations which are carried out on the Internet. Any cases when any transaction is made belong to such disputes and (or) is executed by means of the Internet, for example, at implementation of purchase and payment of goods on the Internet.

·                       Disputes of personal data protection - this problem is connected with using of personal information in electronic trading; with use of the programs defining personal preferences and settings of the user; with use of personal information on social networks, and others. Illegal use of personal information can cause claims of citizens and a claim of the government bodies to persons using personal information. [4]

·                       Spam sailing - Spam is defined as "an unsolicited, often commercial, message transmitted through the Internet as a mass mailing to a large number of recipients." The EC directive 2000/3111 Art. 7 defines spamming only as “unsolicited commercial communication”. The concern is that spam will finally drown out legitimate e-mail on the Internet. People fear that the problems associated with spam will only increase, causing the use of e-mail to be more trouble than it is worth. [5]

The third point which should be mentioned is the problems of defining jurisdiction on the Interned-disputes which mentioned above. In general the problem of jurisdiction is in the list of the questions demanding special attention in the course of regulation of the Internet. The number of the conflicts and the disputes connected with the Internet constantly increases. As a result of uncertainty in a question of jurisdiction lead to emergence of the following problems: the state is incapable to carry out the legal powers for regulation of the social relations in own territory; certain natural and legal entities can't use the judicial rights; there is impossible an ensuring legal safety on the Internet; development of electronic commerce is late; there is a danger of crushing of the Internet on separate zones from the legal point of view. The main problem is that citizens of the different states can participate in the dispute, i.e. information; data spread in the Internet by the natural or legal entity from one country can be used in other country because the Internet has no territorial restrictions. In such situations if offenses are noted, it is very difficult to define which country's right has to solve dispute. In addition there are difficulties to trace the identity of the person who made an offense as on many social networks there is a full access to lay information and registration takes about 5 minutes, reliability of information isn't checked. Thus, the question of lack of legal regulation on the Internet appears even more often.

For definition the Internet - jurisdictions in the international private law exist the following concepts which are based on the principles of territoriality and nationality [6]:

1.                     Concept of the country of an arrangement of the server. In this case jurisdiction is established in a place of the actual arrangement of information as a part of information system (server) by definition of a place of the computer in which memory information is stored. Thus, the relevant legislation of the country, according to legal status of information which is actually located on any server is applied. However the main lack of this approach is that program or other structural element of system can settle down at the same time in several countries. Then becomes problematic to establish a source of information placed in the Network. Other problem consists that the person entering data can choose the option which was more suitable for itself, having studied the relevant legislation of the country where the server is located.

2.                     The concept of the country where registration of a domain name is carried out. This principle is based on recognition of prevalence of jurisdiction of the country belonging to a national zone where registration of a domain name of the website was carried out. Positive line made approach in establishment of a national identity and location of one of the parties of legal relationship. The main shortcoming is connected with possibility of registration of functional domains – such as .com, .org, .net, .info, .biz in any country.

3.                     Concept of accessory to the country owner of content. Here application of the legislation of the country which possesses information as a part of information system is provided. In this case application the Internet - jurisdictions in relation to the person who isn't the citizen of the country where this person lives constantly is impossible. However persons of this category can become owners of content.

4.                     The concept of a place where the owner of content acts. The main lack of this principle is that localization of activity of the owner of content can be changeable, is frequent change. It is connected with stay the Internet - area behind borders of temporary and spatial parameters.

5.                     Principle of a place of violation of the rights of the user. The problem of application of this principle consists that the Internet is available to everyone in any place and at any time. Because of content the unlimited number of people in various points of the world can suffer damage, and in there is a collision of the jurisdictions of various countries differing from each other here.

The territorial and national identity is a basis of these principles therefore there is a difficulty for legal regulation on the Internet which doesn't have any territorial borders. Internet is the virtual world, and the right of a material world for its regulation and control has to be adapted by means of establishment of the special code of laws of the Internet at the international level. For this purpose standardization of national legislations i.e. if in all the countries similar precepts of law are carried out is required, it will not only define easier jurisdiction in relation to dispute, but also to create the uniform world law for regulation and control, prevention on the Internet. At the moment, in many countries the cybercrime, piracy, a pornography, terrorism, extremism is forbidden, it can be considered, how the first element of the beginning of standardization of national legislations. It is possible to accelerate this process by means of creation of new international treaties, agreements, conferences on definition of jurisdiction in the Internet space. As the Internet is unique international technical system, and its regulation has to happen at the international level.

 

Literature Review:

1.     Carlen-Wendels, T.: Natjuridic,Stockholm, Norsteds Tryckeri AB, 2:1, 1998, P.38.

2.     I.M.Rassolov. Pravo i Internet. 2 – izdanie. Izdatelstvo Norma. 2009. P. 6/383.

3.     http://en.wikipedia.org/wiki/Internet, The free encyclopedia, Internet.

4.     http://þñ-ïðàâî.ðô/2013/10/473/ By juspravo. Domennie i innie vidi internet-sporov. October 23, 2013.

5.      Lotta Wikman. International Aspects of Spam and the Problem of Internet Jurisdiction: Comparison U.S. and European Community Law. Hosten, 2002. P.10/73.

6.     D.A.Shevchuk. Mezhdunarodnoe chastnoe pravo. M: Eksmo, 2009. P.272.