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Revista de Derecho. Vol. 10 (I) (2021), pp. 167-183. ISSN: 1390-440X — eISSN: 1390-7794
Recepción: 8-8-2020. Aceptación: 22-2-2021. Publicación electrónica: 12-4-2021
https://doi.org/10.31207/ih.v10i1.240
vol. 10 (I) (2021), p. 167
JURISDICTIONAL ISSUES IN THE DIGITAL AGE
CUESTIONES JURISDICCIONALES EN LA ERA DIGITAL
Yulia Razmetaeva*
Hanna Ponomarova**
Iryna Bylya-Sabadash***
Abstract: The article addresses some aspects of the key challenges for legal
reality and legal systems in the digital age with a focus on jurisdictional
issues in special attention to cyberspace, given its independent value and
self-regulatory nature. The article suggests that regarding issues through the
prism of a universal human rights approach could be a pillar for resolving
existing and potential digital conflicts, prevent cybercrimes. The general
legal framework in light of this approach is proposed here. The article
discusses scenarios for solving jurisdictional problems: (i) global—focuses
on the idea that a single worldwide legal framework and a universal
regulation mechanism are possible; (ii) fragmented—partly considers the
possibility of a single legal framework (or a set of agreements) and rely
mainly on regional mechanisms; and (iii) national—each legal system is
capable of providing and effective response to the threats of the digital age
and aligns its legislation and judicial practice with the latter. Finally, it is
suggested to focus on the prevention and mitigation of negative
consequences of the activities of all subjects of law.
* Ph.D., Associate Professor of the Department of Theory and Philosophy of Law, Yaroslav
Mudryi National Law University (Kharkiv, Ukraine). https://orcid.org/0000-0003-0277-
0554. yulia.razmetaeva1@gmail.com
** Ph.D., Associate Professor of the Department of History of State and Law of Ukraine and
Foreign Countries, Yaroslav Mudryi National Law University (Kharkiv, Ukraine).
https://orcid.org/0000-0003-4940-1406. hanna.ponomarova@gmail.com
*** Ph.D., Associate Professor of the Department of Theory and Philosophy of Law,
Yaroslav Mudryi National Law University (Kharkiv, Ukraine). https://orcid.org/0000-
0001-7069-9708. i.o.bylya8@gmail.com
Yulia Razmetaeva, Hanna Ponomarova & Iryna Bylya-Sabadash
| v. 10 (I) (2021), p. 168
Keywords: Cybercrimes, Cyberspace, Digital Age, Human Rights, Jurisdiction
Resumen: El artículo aborda algunos aspectos de los desafíos clave que
enfrenta la realidad jurídica y los sistemas legales en la era digital con
enfoque en las cuestiones jurisdiccionales, prestando especial atención al
ciberespacio, dado su valor independiente y su naturaleza autorreguladora.
El artículo sugiere que abordar los problemas a través del prisma de los
derechos humanos universales podría ser un pilar para resolver los
conflictos digitales existentes y potenciales, así como prevenir los delitos
cibernéticos. A la luz de este enfoque, aquí se propone un marco legal
general. El artículo discute escenarios para resolver los problemas
jurisdiccionales: (i) global, el cual se centra en la idea de la posibilidad de
un marco legal mundial único y un mecanismo de regulación universal; (ii)
fragmentado, que en parte considera la posibilidad de un marco legal único
(o un conjunto de acuerdos), basado principalmente en mecanismos
regionales; y (iii) nacional, en el que cada sistema jurídico nacional es
capaz de proporcionar una respuesta eficaz a las amenazas de la era digital
y alinea a esta su legislación y práctica judicial. Por último, se sugiere
centrarse en la prevención y mitigación de las consecuencias negativas de
las actividades de los sujetos de derecho.
Palabras clave: Ciberdelitos, Ciberespacio, Era digital, Derechos humanos,
Jurisdicción
Summary. I. Introduction: Key Challenges for Legal Systems in the Digital Age. II.
Materials and Methods to Research the Jurisdictional Issues. III. World Jurisdictional
Theories and Cyberspace Problem. IV. The Human Rights Approach and Balancing.
V. The Cybercrimes as Global Issue in Digital Age. VI. The Scenarios for Solving
Jurisdictional Issues. VII. Conclusions. References.
I. INTRODUCTION: KEY CHALLENGES FOR LEGAL SYSTEMS IN
THE DIGITAL AGE
In the digital era, fundamental changes are taking place –in legal
reality, in society as a whole, and in the life of every person, in particular–.
A significant part of the activities of all subjects of law occurs in cyberspace
or is closely related to the use of information technologies. Today’s
technologies are the product of a reality digitalization and often the usability
process is made possible thanks to telecommunications systems and
Jurisdictional Issues in the Digital Age
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computer networks. Therefore, such an interconnection exposes individuals
to potentially adverse consequences for their human rights, caused by the
behaviors of people operating within other jurisdictions (Coccoli, 2017).
Extremely serious challenges are jurisdictional problems, in particular,
resolving the interrelation between international and national jurisdictions,
cross-border activities and extraterritorial consequences, bringing both
natural and legal persons to legal liability. The information in the form of
data, which is the key to any activity in the digital age, does not just run in
the virtual space, it is connected with physical storage that are territorially
located in the jurisdiction of a particular state. However, there are several
obstacles to determining the exact jurisdiction and effective legal regulation
in general. First of all, it should be borne in mind that information is routed
through the territory of several states. It should also be borne in mind that
the technical capabilities of regulating activities in cyberspace are limited
both objectively and subjectively.
Objective limitations are expressed in such aspects as an extremely
large amount of information, the digital divide, and the technological
leadership, the rapid and unpredictable emergence of new digital tools.
Subjective limitations are expressed in such aspects as the unwillingness of
states to carry out the respective territorial control, organizations and
businesses from different countries to agree on specific rules for providing
their business activity, the desire to take advantage of the lack of effective
regulation, and law degree of control over the online environment. It is also
about sharing responsibility for activities conducted or mediated by natural
or legal persons online. Theoretically, the subjects of such responsibility are
primarily states, individuals and legal entities. But to determine the subjects
of responsibility in a particular case, the degree to which they should bear it,
and the applicable law is becoming increasingly difficult, as due to global
activity, when giant corporations have mother, domiciled, joint companies
in countries with different legal systems, and because of identification
issues. Considering different models of identification and authentication in
some states, Jozef Andraško (2018) writes about the rapid transition to
cyberspace of all aspects of electronic governance, which raises security
issues that could potentially become even more problematic, given the
potential for joint identification.
There are acute questions about balancing human rights and protecting
them online in the digital era. Moreover, actions in cyberspace affect all
actors, and the consequences of such actions are hard to predict. This applies
to indirect and delayed impacts, such as algorithmic discrimination,
widening global inequality due to the digital divide, radicalization of views
due to online hate speech or self-restriction from participating in online
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democratic processes due to numerous privacy violations (for example, the
sale of personal data). This also applies to direct harmful influences, such as
cyberattacks and cybercrimes. Numerous discussions are underway to
evaluate these direct harmful effects, in particular cyberattacks, since “the
threat landscape of cyberattacks is rapidly changing and the potential impact
of such attacks is uncertain” (Agrafiotis, et al., 2018), as well as
cybercrimes, for the evaluation of which traditional sources such as police-
recorded statistics and direct observation of criminal activities work poorly
(Riek & Böhme, 2018), the growing threats from cybercrime and the need
for global security for business (Moskowitz, 2017).
In the digital age, the question of applicable law also raises sharply,
both in connection with the correlation of national and international law, and
in connection with doubts about the admissibility of applying international
law as such to activities in cyberspace. Zhixiong Huang and Kubo Mačák
(2017) manifest that “most cyber operations do not cross the use of force
threshold and must be analyzed through the prism of peacetime international
law” (p. 310), but this does not exclude all the above problems of legal
regulation of cyber operations. With regard to the law of war, the issue is
even more complex, in particular due to the uncertainty of what can be
defined as cyberattacks and cyber conflicts. Therefore, many points to the
need for careful study and careful application of armed conflict laws to
cyberspace (see Xinmin, 2016; Mačák, 2017). The last but not least, it is
necessary to consider the presence of technical, legal and, no less important,
political difficulties when applying the norms of international law in relation
to cyber operations (Pipyros, et al., 2016).
In these conditions, states seek to expand their jurisdiction, both on
online activities, and on controversial issues of the application of law in
situations related to the development of digital technologies. There are many
attempts to expand national jurisdictions, for instance, direct extraterritorial
reach of the legislature or impose national laws and regulations on private
actors, which has direct transboundary impacts on all foreign users (La
Chapelle & Fehlinger, 2016, p. 9). At the same time, the decentralized
nature and flexible structure of cyberspace are contrary to methods of strict
legal regulation. The priority of freedom over security and the dynamism of
cyberspace are reflected in all legal relationships in the modern world, where
networks have become an important part of everyday life and political,
social, and economic development. In the digital age, the infrastructure of
such networks is becoming more global and more dependent on shared
resources and joint solutions.
This article addresses the abovementioned aspects of the key
challenges for legal reality and legal systems in the digital era with a focus
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on jurisdictional issues and a particular focus on cyberspace. The article
suggests that considering these issues through the prism of a universal
human rights approach could be a pillar for resolving existing and potential
conflicts. To conduct the research, we used methods such as dialectic and
hermeneutic approaches as a general philosophical basis for studying
problematic issues in their development and interpretations. We have also
applied methods of system analysis, dogmatic and comparative legal
methods, primarily to consider jurisdictional theories, scenarios for solving
jurisdictional problems, legal regulation used in different countries. In
addition, we refer here to a series of significant decisions by authoritative
courts to illustrate the practical application of the bottlenecks of
jurisdictional theories and some possible scenarios for resolving
jurisdictional problems.
II. MATERIALS AND METHODS TO RESEARCH THE JURISDICTIONAL
ISSUES
The theoretical and methodological basis of the work is the general
scientific methods of research and special methods based on modern
scientific foundations of economics, law and related sciences. The methods
used are: (i) economical and statistical, to analyze the current state
cyberspace problems; (ii) complex and systematic analysis, for the study of
literary sources, normative-legal acts in the studied sphere; (iii) abstract-
logical, for theoretical generalization and formation of conclusions; and (iv)
analysis and synthesis, for module research.
III. WORLD JURISDICTIONAL THEORIES AND CYBERSPACE
PROBLEM
The digital age can be described as an era where every aspect of human
life or activities are mainly information based (Pathak, 2016, p. 18). But the
important thing here is not only the informational component of any life or
activity, but also the fact that, firstly, information in the form of data in huge
and uncontrolled volumes is stored, transmitted, used and modified, and
secondly, much of this happens in cyberspace.
The development of cyberspace is not based on physical boundaries
or the location of subjects. At the same time, legal regulation and
jurisdictional theories are somehow attached to states and other subjects of
law having a geographical location or moving in physical space. Obviously,
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a jurisdictional problem arises. This discussion is not new, but so far it has
not advanced significantly. In addition, difficulties also arise with what
exactly is considered a problem. As noted, “partly because of this failure to
map the precise nature of the jurisdictional problem, regulation of the
Internet is commonly seen as either empirically unfeasible or normatively
illegitimate” (Perloff-Giles, 2018, p. 192). Moreover, opinions about a
possible solution change as the landscape of the online environment and its
perception in the world transform. A decade ago, proposals were made to
make cyberspace the fourth international space, similar in regulation to
Antarctica, outer space and the open sea, that is, spaces where there is no
territorial jurisdiction (see Menthe, 1998, pp. 101-102; Wilske & Schiller,
1997, p. 175). Despite the fact that territorial jurisdiction is the most
fundamental and commonly accepted method of exercising jurisdiction, the
development of decentralized cyberspace could shift this paradigm, and, as
Jean-Baptiste Maillart (2019) point, call into question the territorial dogma
in the digital age (p. 376). Besides, unlike these spaces, cyberspace,
according to Ma Xinmin (2016), “per se does not have any territory or
boundary, it is a man-made virtual space based on the interaction and
intertwinement of human cyber activities supported by cyber
infrastructures” (p. 125).
Nevertheless, cyberspace essentially diminishes the significance of the
physical location, because, as Denis T. Rice (2000) wrote, “transactions in
cyberspace, strictly speaking, do not take place in any particular geographic
location or jurisdiction” (p. 585). At the same time, if we cast aside the
somewhat romantic view of cyberspace as virtual nowhere, the questions
that arise before the law are not that online interactions occur nowhere. As
Dan Jerker B. Svantesson (2004) sagaciously noted, “what causes the
difficulties is that Internet interactions potentially occur everywhere and
come under the jurisdiction and laws of multiple legal systems” (p. 72).
Therefore, modern ideas about applying jurisdictional theories to cyberspace
could be focused on the fact that it has a value of its own and a self-
regulatory character. The independent value of cyberspace makes us think
about how not to harm human rights and the legitimate interests of subjects
of law while trying to solve jurisdictional problems. The self-regulatory
nature determines the style of problem solving based on autonomy and the
use of non-traditional legal instruments. However, neither traditional legal
instruments nor the most daring theories can keep pace with the development
of technology, especially when it comes to digital technologies.
Regardless of what cyberspace is—nowhere virtual, a special space
that is fully or partially tied to territorial or other physically applied
objects—a scenario in which subjects of law are able to agree on a single
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applicable jurisdictional scheme does not look too real. It is almost
impossible to agree on a common understanding of the standards and
develop a mechanism for their application with such a variety of relevant
national laws and approaches to the regulation of cyberspace, especially
given its ever-growing value for any activity. However, there is some hope
that humanity has at least one universally agreed framework of activity—
human rights.
IV. THE HUMAN RIGHTS APPROACH AND BALANCING
Human rights may become the yardstick of justice and a criterion for
jurisdiction in cyberspace. Considering a human rights-based approach in
the context of privacy, Marko Milanovic (2015) writes that “human rights
treaties do apply to all or the vast majority of foreign surveillance activities,
including the bulk collection of the communications and personal data of
millions of ordinary people” (p. 140). If we take an approach based on
human rights as a basis, then the contradictions can be resolved using an
approximate framework that would focus on the following questions: (i)
How does legal regulation within a specific legal system affect universal
fundamental rights? (ii) Does it protect human rights online as well as
offline? (iii) How are the requirements of fundamental rights taken into
account when choosing the applicable law and jurisdiction? (iv) In case of a
jurisdictional dispute, will a particular choice of jurisdiction contribute to
the protection of rights or, conversely, create a threat of their violation? (v)
How do applicable legal instruments ensure respect for human rights by non-
state actors?
Simultaneously, to apply this framework one should consider the
problem of conflict of rights, which require dynamic balancing. Classical
clash of rights, originating from the contradiction of freedom and security,
is particularly acute in the digital age. Several rights that are equally
protected as human rights may conflict with each other. For example,
freedom of expression may conflict with privacy or the prohibition of
discrimination. And if the understanding of these rights varies in different
legal systems, then this balance is even more complicated.
If we take an example of the legal regulation of hate speech, including
online statements or their dissemination in cyberspace, then the conditional
American and European approaches will differ significantly. The American
approach supports the view that the exclusion of such a speech from the legal
field does not allow proper discussion and study of problematic issues,
intolerance in expression, although harmful, is the price that society pays to
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ensure freedom of speech. The European approach advocates the need for
reasonable and proportional restrictions on freedom of expression for the sake
of equality, non-discrimination and coexistence in a multicultural society.
In the laws of the United States of America, most forms of hate speech
are protected, and attempts to impose restrictions on it are usually rejected
by the Supreme Court of the United States. This kind of speech must cause
violence or harm before it is considered a crime. Supporters of the special
protection of freedom of speech are convinced that, for example, racist
statements must be fought with the help of combating racism and banning
them as a hate speech can hit innocent people. In particular, the Supreme
Court of the United States (2011) in the case “Snyder v. Phelps” concluded
that the religious community of Westboro Baptist Church had the right to
picket holding hateful posters in the public place, in front of the cemetery
where the soldier’s funeral was held. This caused a wide discussion, as a
result of which a part of society took the position that punishment for the
actions of the picketers would mean an encroachment on fundamental
freedoms and that protection should be provided even for offensive
statements in connection with discussion of socially significant issues in
order not to limit open discussion or not to drown it.
In a dispute between the American company Yahoo! and the French
organization Ligue Internationale Contre le Racisme et l’Antisémitisme
(International League Against Racism and Anti-Semitism) which fights
intolerance and xenophobia, the United States Court of Appeals for the 9th
Circuit has ruled that the French orders are not enforceable in the United
States because such enforcement would violate the First Amendment to the
United States Constitution (United States Court of Appeals for the 9th
Circuit, 2006). The French side in this case demanded that Yahoo! banned
users from accessing an Internet auction for the sale of Nazi paraphernalia,
which was organized on the Yahoo! site in France. Thus, while the content
was downloaded and viewed in France, from the American perspective, it
was not subject to French legislation banning online hate speech.
European laws contain different language regarding hate speech, and
generally stipulate more stringent liability. In addition, there are some topics
in many legal systems in which the balance of rights becomes a sensitive
issue. For instance, in the case of “Garaudy v. France” (2003) the European
Court of Human Rights (ECHR) has confirmed that Holocaust denial is a
form of speech that has no protection of the right to freedom of expression,
that is, protection in accordance with article 10 of the Convention for the
Protection of Human Rights and Fundamental Freedoms. Roger Garaudy
wrote a book in which he contested some of the historical facts about the
Holocaust and crimes against humanity. The ECHR concluded that this was
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not a historical investigation in search of truth, but an appeal against crimes
against humanity, and that is one of the most severe forms of racial slander
and incitement to hatred of Jews. The ECHR considered that the denial or
rewriting of this type of historical fact is a serious threat to public order,
incompatible with democracy and human rights.
When we deal with online speech, the spread of hate speech in
cyberspace, as well as with their discussion, it becomes even more difficult
to measure their negative impact on human rights. It should be noted that the
Internet does not forget anything, and that the opinions disseminated there
can have a huge audience, and that commercially tuned search engine
algorithms can contribute to biases. Equality, which is both a requirement
and a fundamental feature of human rights, is under attack. The requirements
for justice and non-discrimination are formally fulfilled, but in fact they are
not. The digital divide exacerbates inequality, in particular, globally, and the
actions of non-state actors such as powerful corporations deepen the divide.
In particular, companies can regulate content or activities in cyberspace
using corporate policies, successfully maneuvering between legislation and
judicial practice of different legal systems, including by citing the
inapplicability of jurisdiction. For example, in many African countries,
according to Nir Kshetri (2019), cybersecurity is considered a luxury, and
cyberattacks originating from these countries have a worldwide impact,
which is why companies from industrialized countries classify online
transactions as risky. Scam emails from Nigeria that end up in your spam
folders and promise a win or an inheritance have become the talk of the
town. Has this changed the way Internet users view Nigeria? It is quite
possible that yes.
Today, it is difficult to predict what delayed or indirect negative
impact many actions in cyberspace will have. At the same time, many issues
in the digital age are becoming global in nature due to the interconnectedness
of the modern world, the emergence of new social relations and constructs,
and the change in the degree of influence of such non-state subjects of law
as companies and organizations. Therefore, the abovementioned negative
effects can be global. This is well illustrated by direct malicious impacts
such as cybercrimes.
V. THE CYBERCRIMES AS GLOBAL ISSUE IN DIGITAL AGE
The cybercrimes have recently been a subject of burgeoning interest
last years. And the wider digitalization becomes the more common the
problem gets.
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Despite the fair assertion that every state, regardless of the type of
legal system, “should have sufficient legislative and judicial capabilities to
combat cybercrime and such laws must be harmonious among different
countries; since they protect the common interest” (Al-Hait, 2014, p. 83), in
reality many contradictions arise. They are a consequence of such problems
as a lack of global consensus on the definition of cybercrime and the types
of behavior it covers, a lack of synchronized mechanisms and procedures,
international treaties and acts on mutual extradition, joint investigations and
other cooperation that would respond to the specific of cybercrime and keep
pace with the dynamics in such an undoubtedly complex area. In addition,
obstacles arise as a result of attempts by governments to exercise
transboundary influence and extend national jurisdictions to disputed cases.
This does not always happen as a purposeful extraterritoriality. After all, the
very nature of cyberspace, as rightly noted, “constitutes an affront to easy
determination of jurisdiction in relation to the prosecution of Internet
crimes” (Oraegbunam, 2015, p. 63).
There is no consensus on approaches to understanding and regulating
cybercrime problems, but it is clear that the very nature of such crime and,
in general, activities using predominantly digital tools and/or conducted
online do not fit into the traditional framework of understanding and
regulation. Even those authors who hold the position that traditional
jurisdictional bases can be applied to cybercrime, note that this will lead to
conflict of jurisdictions and numerous claims and acknowledge that
“cybercrime may sooner look at the location of the effect or the location of
the perpetrator or victim” (Brenner & Koops, 2004, p. 44), which again
brings us back to questions of location. More radical views on the solution
of jurisdictional problems of cybercrime include proposals to apply the
universal jurisdiction and the extra criminal justice principle (see Jiménez,
2015; Ajayi, 2016), given the transnational, as well as the significant harm
from this type of crimes.
It is also proposed to act at the level of the international community.
In particular, within the United Nations, which should take the lead “not only
encouraging member states to formulate national laws in this crucial area
but also come out immediately with a model law to facilitate such a move
and bring about uniformity in national laws covering cyber jurisdiction”
(Kush, 2017, p. 102). Looking ahead, we can see this as part of global
approaches to solving jurisdictional problems, which often focus on the UN
and the legal framework proposed at this universal level of regulation.
The complexity of fighting this type of crime in today’s world and the
effectiveness of the potential legal framework reflect the key challenges of
the digital age. In particular, a new threat, potentially having a global
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dimension, is advanced tools and automation that have filled the gap with
the lack of highly qualified specialists needed for unpunished cyber hacking
and invasions. Therefore, today in order to exploit the vulnerability of digital
tools only other digital tools are needed, not information technology
professionals. In a review of new directions in cybercrimes research Adam
M. Bossler and Tamar Berenblum (2019) emphasize that the focus of
cybercrime research today has shifted to examining whether the theoretical
causes and correlations of traditional crimes are equally applicable to
cybercrimes. Markus Riek and Rainer Böhme (2018) highlight the difficulty
of estimating the costs of cybercrimes, also because they are designed to
track attack trends, not impact. Often, theoretical constructs are useless when
applied to cybercrime because: (i) it is a special type of crime based on the
use of digital tools; (ii) it is cross-border and/or related to information
impacts in cyberspace; and (iii) it fully meets the characteristics of
unpredictability and uncertainty of development that we see in the digital era.
Returning to the theses about direct and indirect harm, difficult-to-
predict and long-term consequences from activities carried out or mediated
online, all possible approaches to potential problem solving should be
considered.
VI. THE SCENARIOS FOR SOLVING JURISDICTIONAL ISSUES
Scenarios for solving jurisdictional and cross-border problems in the
digital age look rather abstract, they contain calls for greater independence
and, at the same time, cooperation of all parties.
Part of the responsibility is proposed to be shifted to those who use
cyberspace resources. In particular, it is proposed to put forward demands to
the cyber-community, which “as a whole should become more responsible
for monitoring what is being proliferated over the system” (Gilden, 2000, p.
159). This meets the hopes for autonomous regulation, self-regulation of
cyberspace and interactions mediated by digital tools.
According to Michael Gilden (2000), “efforts must be made to
continue: (i) creating uniform international laws pertaining to the Internet;
(ii) increase self-regulation by hosts and users; and (iii) better educate law
makers of how the Internet and World Wide Web function” (p. 160). As the
difficulties of managing the online space have become systemic and since
we know that tensions will most likely grow, it is noted that such tools
should continue to be used: “multilateral efforts, bilateral agreements, and
informal interactions between public and private actors across borders” (La
Chapelle & Fehlinger, 2016, p. 10). In any case, what we call cyberspace is
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becoming increasingly dependent on shared resources and efforts, acquires
a global structure and a ubiquitous character, and therefore will require
flexible regulation and fruitful interaction. In addition to legal solutions, to
successfully address threats to human rights, the values of democracy and
the rule of law, and any wrongdoing, we will need political solutions and
educational efforts.
The approaches to solving jurisdictional problems in the digital age
could be roughly divided into global, fragmented and national. Global
approaches focus on the idea that a single legal framework and a universal
mechanism are possible. An example would be attempts to regulate
cyberspace at the UN level. In particular, Ma Xinmin (2016) proposes the
UN-centric approach as the core governance model in the global cyberspace,
because “cyberspace is a sui generis domain, with dual characteristics of
reality and virtuality and also dual attributes of sovereignty and global
commons” (p. 125). In the long run, it would be great to have a common
understanding of the fundamentals that are important in the digital age.
However, it is incredibly difficult to come to new working mechanisms at
the UN level in the conditions of super-rapid development of technologies, on
the one hand, and opposing interests of many influential actors, on the other.
Fragmented approaches partly take into account the possibility of a
single legal framework (or a set of agreements) and rely mainly on regional
mechanisms. Such approaches imply mutual cooperation, which can be
based on political, economic interests, cultural ties and geographic location.
The collapse of regulation initiatives of cyberspace at the UN level, as
Anders Henriksen (2019) rightly notes, is likely to lead to a shift away from
ambitious global initiatives towards regional agreements between “like-
minded states” and, at the same time, to the emergence of a fragmented
international normative structure on information and communication
technology. Fragmented approaches may imply a somewhat forced
cooperation, as parties understand that the formation of universal international
legal mechanisms and global agreement has never been easy or quick.
National approaches hold on to the idea that each legal system is
capable of providing an effective response to the threats of the digital age
and, accordingly, shaping the legislative framework and judicial practice.
However, the vulnerability of these approaches lies not only in the different
degrees of development of national legal systems and differing technological
power of states, but also in the fact that inventing a unique adapter for a
charger, if it connects perfectly to the standard ports of the device, is
inappropriate. Some universalization in the digital age is inevitable,
including the universalization of law in connection with the regulation of the
use of information technology and activities in cyberspace.
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It should be said that none of the approaches prevails—they all have
pros and cons, are burdened not only by legal and ethical considerations, but
also cannot be translated into reality without revision on the go, which is
primarily due to very fast and unpredictable development of technologies.
So far, the regulation and application of law in relation to the use of
information technology and activities in cyberspace resemble a careful
balancing act. For instance, the European Union’s data protection regulation,
at first glance, has a distinctly extra-territorial nature in relation to the right
to be forgotten. But the decision in the case “Google LLC, successor in law
to Google Inc. v. Commission Nationale de l’Informatique et des Libertés”
(Court of Justice of the European Union, 2019) on the inapplicability of this
right outside European jurisdiction clearly shows that this is not the case.
Many disputes with a jurisdictional component promise to be sharp,
but in reality, they end in nothing. An illustrative example of a decision
without a decision is the case of “United States v. Microsoft Corp” (Supreme
Court of the United States, 2018), known as Microsoft’s email privacy
dispute, which was expected to redefine some jurisdictional issues. The
controversy arose around the use of data in cloud storage and, in particular,
its transfer abroad. During the consideration of the case by the Supreme
Court of the United States, new legislation was passed that included the issue
of using data from cloud storage and provided law enforcement agencies
with some new powers. As a result, the issue of digital evidence collected
across borders, which is vital for both parties—the state and the
corporation—was not resolved substantively, and the trial was dropped.
These same cloud storage facilities may involve storing sensitive
medical data overseas. Side by side, even if a powerful corporation,
possessing technological and economic resources, cannot always ensure the
security of data constituting a trade secret, the resources of the public health
sectors can be much more vulnerable. That being said, cyber interference in
life support systems can have immediate dire consequences. Moreover, in a
connected globalized world, everything can hit everyone, as the fresh lesson
of the COVID-19 pandemic has shown.
Therefore, regardless of the approaches used, the efforts of all parties
should be aimed at preventing and mitigating the negative consequences of
the activities of subjects of law in the digital era. First of all, we are talking
about activities that take place in cyberspace or are closely related to the use
of information technologies. Discussion of strategies and the development
of specific recommendations for prevention and mitigation of consequences
can be the subject of further research in this area.
Yulia Razmetaeva, Hanna Ponomarova & Iryna Bylya-Sabadash
| v. 10 (I) (2021), p. 180
VII. CONCLUSIONS
1. Thus, jurisdictional issues, such as cybercrime, resolving the
interrelation between international and national jurisdictions, cross-border
activities and extraterritorial consequences, bringing both natural and legal
persons to legal liability, in the digital era are becoming a matter of special
jurisdictional interest at the international level as the negative impact. This
is due to the contradictory application of traditional law that has not
contemplated the world-wide technological advance existing at the present
time. 2. The other factor are the peculiarities of the activities of subjects of
law in cyberspace or the close connection of such activities with the use of
information technologies and digital tools. Direct and indirect harmful
influences today have an all-encompassing and unpredictable effect, and the
degree of negative consequences may increase due to the global nature of
the online environment and the general interconnectedness of the world, as
well as the redistribution of the influence of state and non-state actors. A
human rights-based approach and an associated universal legal framework
can provide a basis for resolving existing and potential conflicts.
3. Regardless of the type of scenario for solving jurisdictional
problems based on approaches: (i) global (focuses on the idea that a single
worldwide legal framework and a universal regulation mechanism are
possible); (ii) fragmented (partly considers the possibility of a single legal
framework (or a set of agreements) and rely mainly on regional
mechanisms); and (iii) national (each legal system is capable of providing
an effective response to the threats of the digital age and aligns its legislation
and judicial practice with the latter).
4. The efforts of stakeholders should be focused on preventing and
mitigating the negative consequences the activities of subjects of law,
considering the trends towards the proliferation of the digital environment.
Jurisdictional Issues in the Digital Age
| v. 10 (I) (2021), p. 181
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