In computer or internet activities. [1] In determining the

            In
cyberspace, there is no boarder between regions and the internet activities are
not separated along the territorial boundaries. This characteristic always
gives rise to jurisdictional issues when a cybercrime happens across
territories. There is a great challenge for the courts to determine whether
they have jurisdiction over the computer or internet activities. 1
In determining the jurisdictional issues, the courts need to look into a
wider scope. The considerations are not limited to geographical aspect but it
also includes other aspects such as the nationality aspect and the jurisdiction
conflict.

Geographical
Aspect

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            Geographical aspect is a very
important aspect which needs to be discussed when a jurisdictional issue
exists. Essentially, the location of the act which is the origin of the act,
the location of effect, the location of computer and the location of the
parties (perpetrator and victim) are the problems in jurisdictional issues in a
cybercrime case.2

            In geographical aspect, the most
common jurisdictional issue found is the location of acts. The general rule is
that a national court has jurisdiction over any offence which is committed in
the nation’s territory. This territorial jurisdiction was clearly stipulated in
an old US case which is the case of United States v. Bowman. 3
However, a State is restricted to exercise its power outside its territory
unless it is allowed by an International treaty or customary law.4

            However, due to the advancement of
technology and development of cyberspace, the location of act and the location
of effect might not be the same. Sometimes, the act is legal at the location of
act but it becomes illegal in the location of effect. This further complicates
the issue of jurisdiction.

            This jurisdictional issue was
illustrated in United States of America v. Jay Cohen5.
In this case, the defendant claimed that all betting took place in
Antigua where gambling is legal and the law did not prohibit the transmission
of information of bets from a foreign country where such betting is legal. However,
it was found that the information was transmitted to and from New York, where
gambling is illegal. Hence, the defendant was found liable.

            Moreover, internet activities can
take place across several territorial boundaries regardless of the location of computer.
The location of computers is also an important factor in determining the
jurisdiction of the courts over the particular matter. This can be seen in the
wording of Malaysian statute.6

            Another
factor is the location of persons. It includes the location of the perpetrator
and the location of the victims. Due to the fact that cybercrime may occur
within a territory or may occur across various territories, the location of the
perpetrator and victim might not be the same. The difference in locations might
also give rise to an issue on which nation court would have jurisdiction over
the matter.

            Being
one of the countries in this world, it is certain that Malaysia cannot avoid
herself from facing the jurisdictional issues in geographical aspect. Furthermore,
globalization and advancement of technology have put much more burden for Malaysia
in regulating cybercrimes.

Nationality

            Other than geographical
aspects, a national court can also claim jurisdiction based
on nationality of the parties (the perpetrator and the victim). This was
illustrated in an old English case that is the case of Joyce v Director of
Public Prosecutions7
where the court take into account the nationality of the perpetrator. In this
case, the appellant had obtained a British passport and described himself as a
British subject. He was found to have delivered from Germany broadcast talks in English hostile to
Great Britain. It was held that the holding of a British passport gives the appellant
the rights of enjoyment to the protection of the Crown. However, if he is
adherent to the King’s enemies and that protection has not been renounced, he
would be guilty of treason.

            Since cybercrime might be a crime
happens across various territories, the nationality of the perpetrator and the
victim(s) might also be different. The question is whether the Malaysian courts
have jurisdiction over a foreign perpetrator who had committed cybercrime under
the Malaysian law? What if the foreign perpetrator comes from a country where
such act is legal? What happens if the victim is from another State? Besides,
there are still many questions need to be discussed.

Jurisdiction
Conflicts

            When a cybercrime happens across two or more territories,
jurisdiction conflicts will occur. This will give rise to a confusion on which
State should have the jurisdiction over the matter. Jurisdiction conflicts can
be classified into two types, which are positive jurisdiction conflicts and
negative jurisdiction conflicts.8
A positive jurisdiction conflict occur when several States claiming themselves
to have jurisdiction over a particular case.9
On the other hand, negative jurisdiction conflict involves an occasion where a
State fails to claim jurisdiction over a case even though it is expected to
claim the jurisdiction.

            This two kinds of jurisdiction conflicts can be seen in
the Philippine case of ‘love bug’ virus (also known as ‘I-Love-You’ worm) in
the year of 2000.10
The computer virus had affected more
than 45 million computer users11 and it
had caused estimated damages at over US$10 billion12.
Due to the fact that this computer virus was spreading widely across many
countries, positive jurisdiction conflicts would have occurred if the affected
States claimed jurisdiction over this case. However, the case was dismissed and
the accused was acquitted because at that time, Philippine did not have a law
which made the act of creating and disseminating computer virus illegal.13

            Jurisdiction conflicts can occur due to the geographical
issues and the nationality issues. When there is a cybercrime happens across
the States, jurisdictional conflicts might occur. These conflicts will affect
the relationship between the States and they might also cause the case to be
disposed as what had happen in the mentioned Philippine case. Hence, the
jurisdictional conflicts faced by Malaysia should be discussed in detail in
order to find a solution to reduce such conflicts.