Article 24 of the Convention outlines the principles relating to extradition. Indeed, due to the borderless nature of the internet, this article is important in ensuring that countries work together to catch the criminals on a global scale. 32 Article 25 outlines the principles relating to mutual assistance and demonstrates that parties should assist one another to the best of their ability for the purposes of investigations and proceedings which relate to criminal offences relating to computer systems.
In relation to child pornography, at the European level, the Council Framework decision in 2003 was designed to combat racist content and xenophobia,34 including the holocaust denial as one of its provisions (not yet finalised). During the past year the EU has been looking at proposals with regards to terrorist propaganda and the incitement to terrorism. 35 However, the EU did not regulate on this issue and instead decided to focus upon self regulatory solutions such as education and awareness programmes and filtering solutions.
In 1999, the EU also developed a community level action plan in order to combat some of the problems of the internet and to achieve 'safer use of the internet. '37 This action plan is funded by the EU and has been proved successful, since it has been renewed four times. 38 The Internet Corporation for Assigned Names and Numbers is the non-profit corporation that was formed to assume responsibility for the IP address space allocation, protocol parameter assignment, domain name system management, and root server system management function previously formed under U.
S government contract by IANA and other entities. 39 ICANN was formed in 1998 and has as its aim, public-benefit initiatives. ICANN is fully aware that content on the internet cannot be easily regulated, but its coordination role of the Internet's naming system makes it very much compatible with the very nature of the internet I. e. its continual expansion and evolution.
As it relies on participants from all over the world to keep the Internet secure and stable, it is an important part of the multi-layered governance system, despite having no direct links to the governments of each jurisdiction. 40 This private body is yet another example of why nation-state governments cannot work alone on matters relating to the internet. 'Governance signifies a change in the meaning of government… or the new method by which society is governed. ' 41 Why the current multi-layered governance system is inadequate:
Article 9 of the Cyber-Crime Convention, which sets out the offences related to child pornography42, has resulted in difficulties in achieving mutual agreements between states in relation to what is or is not acceptable conduct and since this is a contentious subject of debate, harmonization at the Council of Europe Level has been stifled. Indeed, when the Council of Europe introduced an additional protocol to the Cyber-Crime convention relating to crimes committed through computer system, limited support was achieved.
43 Furthermore, harmonization at the European level is still to be achieved since its implementation is subject to signature and ratification. 44 Also, in relation to encryption standards, inter-government regulation is very slow to react due to the fact that bureaucracy takes time. 45 Indeed, there have been criticisms of decision making in regards to the internet at the international level. For instance, it took the Council of Europe five years to develop the Cyber Crime convention and even after this, not all nation states have ratified it. 46 This is most likely to be due to content related matters.
The UN, for example, has been debating the response for encountering racist content on the internet for almost a decade as a strategy cannot be agreed upon and there are also constitutional differences in legal frameworks, not to mention the protection of certain human rights. 47 Also, in a global environment, problems have occurred at the cross-jurisdictional level. For example, some countries do not criminalise the possession of child pornography and instead focus upon production and distribution. 48 Article 9. 1. e however, includes '… possessing child pornography in a computer system…
At the national level in the UK, however, possession, distribution and production are all criminalised50 and therefore the Cyber-Crime convention could be seen to act in favour of certain jurisdictions and undoubtedly is fragmented in the sense that it cannot make everyone happy. There has been a problematic response when it comes to ratifying the Cybercrime convention I. e. the UK, Spain, Germany and Russia have still not ratified. 51 The UK may have chosen not to cooperate due to the fact that the majority of crimes on the convention are already criminalised in the UK and so it is not on the political agenda.
Also, if the UK had signed the convention, this would have meant that it would have to cooperate with other states I. e. provide data etc. This presents a potential problem of a multi-layered governance system, as it indicates that some jurisdictions are not prepared to work with other states to achieve better regulation practices. The World Conference Against Racist Content53 is another example of the UN's attempts to formulate policies, but like child pornography, this is a contentious subject and harmonization seems like an impossible task. Self regulation has been encouraged as a result.
There has been an increase in the support of Self regulation as an alternative to failed harmonization. However, by allowing private bodies such as the Internet Watch Foundation to become a policy making body, (filtering and rating systems), this may create a concerning standard for the privatised censorship on the internet. 54 In the report 'Who watches the Watchman,55' it has been suggested that the development of rating and filtering systems may not be able to provide the best solutions and self regulation is closely linked to government aims and inspirations.
In this sense, the resulting restrictions and complex regulations would render the UK, a hostile environment for network development. 56 At the national level, the self regulatory initiatives of ISP's have become under increasing pressure when it comes to content related matters. They are seen to be the 'gatekeepers' and are the 'usual suspects' and have been accused of possessing harmful material. 57 Despite being able to fully police their own networks, ISP's may be taken to court.
Whilst in the UK, ISP's are rarely prosecuted due to the existence of private bodies such as the Internet Watch Foundation, this has not been the case in other countries such as France and Germany where ISP's have been charged with criminal offences, such as in the case of Felix Somm who received a two-year suspended sentence and a fine of DM 100,000. 59 Also, in terms of the 'deep pocket' argument, ISP's have the money to be sued. 60 A criticism then of these countries is their lack of private bodies to control regulation and the overuse of their governments, who do not have the expertise to deal with various content related matters.
Indeed; 'It is important to distinguish between illegal material and material which is legal but… offensive. Self regulation is an appropriate tool to address the latter…. '61 To conclude, the response of the EU has been unclear and so there has been an increased focus on self regulatory initiatives in the private sector. However, self-regulatory initiatives do not always promote whole-hearted co-operation on an international scale and so it is worrying that these such initiatives are on the increase.