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

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  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/ 	Email 
<mailto:?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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