Crime in cyberspace

It is one thing to enact criminal offences to address online conduct; it is quite another to assert jurisdiction over offenders who may be located anywhere in the world. We saw in Chapter 1 that early scholarship postulated cyberspace as a distinct place, beyond traditional rules based on geographical location. This has not, however, proved to be the case, ‘with States now consistently applying traditional territorially based rules to online activity and largely refusing to treat the Internet as beyond their competence’. This is particularly true in the criminal law which is necessarily ‘grounded’ in notions of territoriality.

This chapter provides an overview of the principles which apply to the exercise of criminal jurisdiction over extraterritorial conduct. In this context, the term ‘jurisdiction’ in fact conceals three distinct concepts which require separate discussion:

1. Does the state have legislative power over the relevant conduct (‘prescriptive jurisdiction’)?

2. Do the courts have power to hear the particular dispute (‘adjudicative jurisdiction’)?

3. Does the state have jurisdiction to enforce the law (‘enforcement jurisdiction’)?

Prescriptive jurisdiction

Prescriptive jurisdiction, also known as subject matter or legislative jurisdiction, is addressed in Art. 22 of the Cybercrime Convention. This sets out a number of bases on which parties are to establish jurisdiction.