Thecurrent provisions in Malaysia that governs jurisdictional issues are provided in s 9 of Computer Crimes Act 1997 (CCA1997), s 4 of Communication and Multimedia Act 1998 (CMA 1998) as well as s 135 of Personal Data Protection Act2010(PDPA 2010) as discussed earlier. Having discussed all the saidSections, we can clearly see that the amount of effort the Malaysian governmentput to solve jurisdictional issues in cyberspace is nonetheless quite fruitful.However, even with the enactment of all these sections it still does not solvethe issue at hand thus leading us to discuss what are the possible means tosolves jurisdictional issues that occur in cyberspace at large. Inorder to solve jurisdictional issues in cyberspace there are various methodthat can be establish, and one of them would be providing arbitration online.
Arbitration is one of the alternative dispute resolution whereby it is amechanism that provides a neutral third party to listen and solve the disputeoutside of court1.It must be noted this method will only be applicable to civil cases and itshould be agreed upon both parties to seek for an arbitrator when they areinvolve in an internet disputes and would like to have a legally binding andenforceable award. Thus, by encouragingthe usage of arbitration as a medium to solve internet disputes there is lesslikely jurisdictional issues would occur as arbitration helps to preventdisputes from going to court. Hencethere is no need to determine which country jurisdiction would apply to theoffender.
This may not be solvingjurisdictional issues arising in cyberspace directly but it will at the veryleast help prevent it from arising before the courts. Moreover, by encouraging the parties to turnto arbitration it will allow the parties involves in the internet disputes tofreely decide on which national law to determine their rights and obligations.If the parties failed to decide upon which national law to determine theirrights and obligations, the arbitrator shall have the right to decide whichnational law is the most suitable one to solve the dispute. Therefore, solvingthe issues of having to decide which national law will be applicable to cyberdisputes. Furthermore, the arbitrationprovides a wider range of solution from national to international law withouthaving to strictly follow the laws laid down by one country. Thus, arbitrationwould be one of the most flexible and useful method that should be applied insolving cybercrimes as it would not disrupt the traditional jurisdiction and atthe same time allowing various national and international laws to be applicableto cybercrimes offender from various country. Anothermethod that can be taken into consideration to solve jurisdictional issues incyberspace would be developing a transnational legal doctrine with regards tocybercrimes2.In order to develop such doctrine, it would require the cooperation of allcountries around the globe to take part in it and agreed on the formation ofsuch doctrine as the cyberspace is a borderless world.
In this doctrine, itshould prescribe that all those who commit cybercrime should be able to betried in both countries as this would prevent disregarding ones’ countryjurisdiction and it would be fair to both countries as well. This would besimilar to Part 2 of the UK ExtraditionAct 20033whereby, it allows the requesting country to request for the offender to besent to their country to be tried according to their country jurisdiction4 5. Inaddition, in this doctrine it should also prescribe clearly that whenever anoffence is committed in cyberspace the offender should be charge under thejurisdiction that imposes a higher punishment upon him as this would preventfurther occurrence of the offence. And if the affected the country is still notsatisfied with the punishment impose upon him then they may use the dualcriminality system as prescribe in the same doctrine to request for theoffender to be brought to that country to tried him.
However, in this doctrineit must also prescribe that once a person is charge with the higher punishmentthe said country who requested for the offender to be tried in their countrymay only charge him with a secondary or a lesser penalty. Developinga transnational doctrine to guard cybercrimes would be a great option to solvethe issue of jurisdiction because by doing so all nations will be subjected tothe same legal doctrine and there would be less conflict between nations. Moreover,it would provide a synchronize laws to be obeyed by all offenders as well asall nations that agreed to create this doctrine. Hence, it will resolve thecurrent issue of having to decide which jurisdiction would apply to offenderand at the same time be fair to all nations as the same laws will applicable byall of them. Furthermore,the nations who agreed upon creating a doctrine to govern jurisdictional issueswith regards to cyberspace should also agree to create a formal body that seeto the enforcement of the doctrine. All participating nations should elect arepresentative to be part of the formal body so that they would be able toproperly enforce the created doctrine. This particular body will be the onessettling issues arises out of the doctrine. Thusfar, we have provided methods such as arbitration, developing a legal doctrine and creating a formal body to curb and governjurisdictional issues from arising in cyberspace.
Another method that is to beconsidered would be urging all nation to singed with the Budapest Convention6. The aim of this convention is to protectsocieties worldwide form the threat of cybercrimes7. This convention is theone and only convention that exist in the world that binds internationalinstrument on the issue of cybercrimes. This convention provides a guideline toall signed nations a comprehensive national legislation against cybercrime aswell as cooperation between them8. Therefore,by signing with the Budapest Convention it would automatically aid a nationdealing with cybercrime issues.
If all nation were to sign with thisconvention, all nation will have a common understanding as to what type ofissues they are currently facing in the cyberspace. Hence, it will at the veryleast provide a simple guideline and understanding between nation as to whatlaws should be set by them and this would prevent any future jurisdictionalissues from occurring since all of them have the general idea of what are theissues they are facing. This would at least allow the participating nations to comeup with a mutual agreement as to what extent their nation jurisdiction wouldapply.
Ina nutshell, there a various method that can be adopted by the Malaysiangovernment as well as other nations to solve jurisdictional issues as discussedabove. In order to prevent further occurrence of jurisdictional issues incyberspace there must be a cooperation from all nation. By having thecooperation of all nation from around the globe, it would be the best solutionto address this issue.
This is due to the fact that, we are currently in theera of Information Age9 whereby everything can bedone in the cyberspace and with it being borderless we will never know we arebound by which jurisdiction. 1 Jurisdiction InThe Cyberspace. Lawteacher.net. Retrieved 28 December 2017,fromhttps://www.lawteacher.
net/free-law-essays/commercial-law/jurisdiction-in-the-cyberspace-commercial-law-essay.php2 ibid3 Extradition Act 2003. Legislation.gov.
uk.Retrieved 28 December 2017, fromhttps://www.legislation.gov.uk/ukpga/2003/41/part/24 A-Z of legislation: Extradition Act 2003.
(2018). the Guardian. Retrieved 28 December 2017, fromhttps://www.theguardian.com/commentisfree/libertycentral/2008/dec/16/extradition-act5 Broadbridge, S. (2009). Extradition. LibraryHouse of Commons.
Retrieved fromhttp://file:///C:/Users/sue%20ting/Downloads/SN04168.pdf6 Convention, B., & Europe, C. BudapestConvention and related standards.
Cybercrime. Retrieved 28 December2017, from https://www.coe.int/en/web/cybercrime/the-budapest-convention7 Ibid 8 Ibid 9 Theera in which the retrieval, management, and transmission of information,especially by using computer technology, is a principal (commercial) activity.informationage | Definition of information age in English by Oxford Dictionaries.
OxfordDictionaries | English. Retrieved 28 December 2017, fromhttps://en.oxforddictionaries.com/definition/information_age