[AfrICANN-discuss] EUROPEAN UNION’S CONVENTION ON CYBER CRIME (ETS NO. 185): FIRST INTERNATIONAL TREATY ON CRIMES COMMITTED VIA THE INTERNET

[Anne-Rachel Inné]

INTERNET LAW - EUROPEAN UNION'S CONVENTION ON CYBER CRIME (ETS NO. 185):
FIRST INTERNATIONAL TREATY ON CRIMES COMMITTED VIA THE INTERNET*Ira Piltz,
Greenpoint Technologies*[image:
Email]<?subject=INTERNET%20LAW%20-%20EUROPEAN%20UNION%E2%80%99S%20CONVENTION%20ON%20CYBER%20CRIME%20%28ETS%20NO.%20185%29:%20FIRST%20INTERNATIONAL%20TREATY%20ON%20CRIMES%20COMMITTED%20VIA%20THE%20INTERNET&Body=http://www.ibls.com/internet_law_news_portal_view.aspx?s=articles%26id%3d7884E3EB-2E7B-4605-A301-3A6F793D27C2>The
Council of Europe, along with the U.S., Canada and Japan signed a convention
on Cyber crime. The convention provides a legal framework for the protection
of society against cyber-crime. The convention stresses adopting appropriate
legislation and fostering international co-operation in this arena. It is
the first international treaty on crimes committed via the Internet and
other computer networks. In particular, the convention deals with
infringements of copyright, computer-related fraud, child pornography and
violations of network security. This Convention has been adopted by the
Committee of Ministers of the Council of Europe at its 109th Session (8
November 2001). 41 European countries along with U.S., Canada and Japan have
signed this convention.

 The main aims and the objectives behind the convention are set out in the
preamble. The goal of the convention is to establish a fast and effective
regime of international co-operation against cybercrime. The preamble
stresses the harmonizing of the domestic criminal substantive law elements
of offenses and connected provisions in the area of cybercrime. The
convention provides for domestic criminal procedural law powers to combat
cyber crime. The law enforcement agencies can investigate and prosecute the
offenses committed by means of a computer system or in electronic form.
 *What is the structure of the convention?*
The Convention contains four chapters: (I) Use of terms; (II) Measures to be
taken at domestic level – substantive law and procedural law; (III)
International co-operation; and (IV) Final clauses.

 Chapter I contains definitions for computer system, computer data and
traffic data. The convention defines "computer data" as "any representation
of facts, information or concepts in a form suitable for processing in a
computer system, including a program suitable to cause a computer system to
perform a function".

 Chapter II is divided in to three sections. Section 1 covers substantive
law issues, while Section 2 deals with procedural law issues. Section 1
includes both criminal provisions and other connected provisions in the area
of computer- or computer-related crime. Section 2 states that each party
shall adopt such legislative and other measures as may be necessary to
establish the powers and procedures provided for in the section for the
purpose of specific criminal investigations or proceedings. Along
Jurisdiction provisions are established in Section 3.

 Chapter III also contains provisions concerning traditional and computer
crime-related mutual assistance as well as extradition rules. Finally,
Chapter IV contains the signature and entry into force and territorial
application provisions and the effect of the convention.
 *What are the various provisions incorporated in the convention relating to
computer-related fraud?*
"Computer-related forgery" and "Computer-related fraud" are included within
the definition of computer-related offenses. These offenses typically
involve the manipulation of computer system or computer data. The convention
provides that each party should adopt legislative measures against the
criminal offenses under its domestic law, when committed intentionally and
without right-- the input, alteration, deletion, or suppression of computer
data, resulting in inauthentic data with the intent that it be considered or
acted upon for legal purposes as if it were authentic, regardless whether or
not the data is directly readable and intelligible. It is interesting to
note that the convention has also imposed a mens rea requirement. As per the
convention, the States may require an intent to defraud, or similar
dishonest intent, before criminal liability attaches.
 *What are the provisions of the convention related to child pornography
transmitted via the Internet?*
•Title 3, Article 9 deals with the offenses related to child pornography.
The convention defines a minor as a person less than 18 years of age.
However, individual states may create a lower age-limit, which the
convention states shall not less than 16 years. The term "child pornography"
includes pornographic material that visually depicts a minor engaged in
sexually explicit conduct; a person appearing to be a minor engaged in
sexually explicit conduct; and realistic images representing a minor engaged
in sexually explicit conduct.

 The provision criminalizes various aspects of electronic production,
possession and distribution of child pornography. Producing child
pornography for the purpose of its distribution through a computer system is
an offense under the convention. Additionally, offering or making available
child pornography through a computer system; distributing or transmitting
child pornography through a computer system comes under the purview of the
convention.
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