Newsletter
CYBERCRIME JURISDICTION
The rapid development of e-commerce and the growing popularity of the Internet have high-lighted disputes over Internet domain names. The transnational and transregional nature of the Internet when used as a tool for criminality has also challenged the traditional rules for deter-mining jurisdiction over crimes. How to secure convictions, and what penalties to impose, when existing legislation does not define specific of-fences for crimes committed online, are also difficult issues.
In a 2003 judgment against a hacker who gained illegal access to a website via the Internet and deleted data from it, the Taipei District Court for the first time handed down a conviction for the offence of deleting another person's electro-magnetic records, under Article 352 Paragraph 1 of the Penal Code as in force of the time of the offense, and of interfering with another person's electromagnetic records, under Paragraph 2 of the same article. The above two paragraphs impose punishments of up to three years' im-prisonment. Meanwhile Article 220 Paragraph 2 of the code provides that sounds, images, or symbols that are played or displayed when audio recordings, video recordings, or electromagnetic records are processed by mechanical devices or computers shall be deemed to be documents if they are sufficient to express intent.
Addressing the issue of whether it had jurisdic-tion over the offence, the court stated that under Article 5 Paragraph 1 of the Code of Criminal Procedure, jurisdiction over an offence lies with the court that has jurisdiction over the place where the crime is committed, or over the place of the accused's domicile or residence. As to how to identify the location where a crime is committed, the court noted that Article 4 of the Penal Code provides that "where either the act or the effects of an offence take place within the territory of the Republic of China, the offence shall be considered to be committed within the territory of the Republic of China." By analogy with this provision, the place of commission of a crime should naturally include both the location where the act took place, and the location where its effects took place.
This interpretation was supported by a 1983 judgment of the Supreme Court. In this case, the accused's domicile was in Taichung City, and his acts of transmitting files to the website and de-leting files from it were also committed in Taichung City via an Internet connection. However, the website's server was located in Taipei City, and the damage caused by the ac-cused's actions occurred within the server. Thus the effects of the actions took place in Taipei City. This being so, according to the cited Su-preme Court judgment, the Taipei District Court had jurisdiction over the case.
The most comprehensive exposition of the courts' line of thinking in their efforts to clarify and resolve the issue of jurisdiction over Internet crimes is to be found in a 2002 judgment of the Taiwan High Court. In that case, the court cited the same Article 5 Paragraph 1 of the Code of Criminal Procedure, Article 4 of the Penal Code, and the above 1983 judgment of the Supreme Court; nonetheless, it felt that the issue of juris-diction over Internet crime should be distin-guished from that of determining the place of commission of traditional crime, for unlike other communication networks developed by the hu-man race in the past (such as roads, language, telegraphy, and wireless broadcasting), the Internet makes use of computer network systems that communicate rapidly across national boundaries, on the one hand reducing the dis-tance between people and organizations in dif-ferent locations, and on the other hand expanding our space and creating new virtual spaces.
The court went further to note that in jurispru-dential theory there are competing views on the issue of jurisdiction over Internet crime. Ac-cording to the most liberal view, the simple fact of a web page being accessible from a particular location would give courts in that location juris-diction over its content, in which case anywhere in the world might be held to be the place of commission of a crime. This would, however, give rise to the competing jurisdictions of dif-ferent countries, and would create practical dif-ficulties both for parties and for courts. On the other hand, the most narrow view of jurisdiction, stressing traditional criteria such as the domicile or residence of the offender, or the location of the computer on which a web page is stored, is likely to be too inflexible.
For these reasons, the court is of the view that the most appropriate would appear to be a compro-mise whereby, while observing the traditional criteria for jurisdiction under the rules of crimi-nal procedure, and thus avoiding creating diffi-culties for parties and courts, the courts can also take into consideration other specific circum-stances such as the location of the computers on which a website or e-mail is stored, the location of computers used to transmit data, and other relevant circumstances such as whether any transaction took place at a specific location.