Should There Be a New Body of Law for Cyber Space?

Abstract

Malicious cyber activities are no longer a matter of if but of when, and in our increasingly interconnected world, threats to our national sovereignty can come from unexpected sources and directions – a 360-degree globalised challenge. Cyber security is no longer the preserve of any single country because of the trans-border nature of malicious cyber activities and an increasingly connected and sophisticated technological and user bases. The principle of territoriality, arguably, the ‘bedrock’ of criminal jurisdiction is central to the reason why trans-border malicious cyber activities are difficult to prosecute. At the very least, geographically based concepts of sovereignty must be ‘squared’ with the nature of open networks, possibly necessitating the development of a new law of cyber space to address the appearance of a lacuna in the law. In this paper, we seek to analyse the question “Whether there should there be a new body of law for cyber space?” by examining first the potentially broad application of jurisdictional criminal law, particularly the principle of extra-territorial jurisdiction, then if this hurdle is crossed, we then touch on what body of law should apply. We raise the notion that the conception of a new law of cyberspace and a forum for prosecution, is not impossible, but now is imperative.

Keywords: Cyber crime, Cyber space, Extra-territorial jurisdiction, International law of cyber space

JEL Classification: C88, C89, K42, K49