K problému působnosti trestního práva na internetu
Authors: Polčák Radim 
Published: January 2025

When assessing the applicability of Jaw in cyberspace, it is not possible to simply follow the traditional criteria and to state that the Jaw universally applies. As demonstrated on multiple examples, there are new emerging factors that affect not just the ways of assessment of particular elements of territorial or subject-matter applicability of Jaw but its applicability over artificially created environments in general. Even the state itself often hesitates to enter the cyberspace with its imperative Jaws and enforcement agencies.
However, there are at the moment solid grounds for the Jaw to reason its existence and regulative powers in social environments that emerge in virtual spaces. The empirical data show growing presence of chaotic elements such as various forms of destructive hacking, dissemination of child pornography, privacy infringements etc. that are unable to be countered by self-organizing mechanisms. Up to that, various relevant interests now present and active in cyberspace, out of which we should stress namely those of commercial nature, are not ex definitione capable to protect the basic principles and core values of the society.
Despite of the fact that the penal law aims to protect the aforementioned basic values and core interests of the states, its particular applicability in cyberspace remains more than questionable. The reason for that we find namely in still remaining problem of passive and active territorial conflict of penal jurisdictions over cyberspace. This conflict causes that on-line criminals might either find safe harbours or that they might rely on technical and namely formal complexity of the processes of cross border investigation, extradition, etc.
The Council of Europe was constantly showing during the last couple of years remarkable efforts in countering cybercrime. These efforts finally Jed to relatively successful adoption of International Convention on Cybercrime. Unfortunately (but not surprisingly), this convention addresses namely the removal of safe harbours for cybercriminals by harmonizing the general list of typical criminal activities in cyberspace. As to the jurisdictional issues, it only adopts a system of exchange of information and motivates the member states to closely cooperate on investigation and prosecution of cybercrime. Consequently, we still have to work with more or less traditional interpretational patterns using the criteria of locus conducti, locus delicti, locus damni etc. With this respect, it is to be said that more precise or more suitable criteria for delimitating penal jurisdictions are not likely to be developed and adopted in foreseeable future. The reason is, besides high sensitivity of the issue of limiting the state jurisdictions in their vital area of interest, also constitutional grounds that in many times protect individuals from penal jurisdictions of foreign states.
Therefore, we might conclude that the issue of penal territorial internet jurisdiction does not have any firm, fixed or stable solutions and it is very unlikely that such solutions will be developed and implemented in foreseeable future. Consequently, we have to work with pragmatic method when dealing with investigation and prosecution of cybercrime. In other words, we focus on particular situations and try to develop for them particular ad hoc solutions without having an ambition for objectivity or permanence of such solutions. Only that kind of approach might sooner or later lead into the establishment of more solid and stable grounds for penal jurisdiction over the internet.