The Council of Europe Cybercrime Convention

The Council of Europe Cybercrime Convention 2001 is the first international treaty of its kind. It is specifically designed to regulate and control criminal activity via the internet and over computer networks on a global level. In a summary of its Cybercrime Convention the Council of Europe explains its purpose as follows: “Its main objective, set out in the preamble, is to pursue a common criminal policy aimed at the protection of society against cybercrime, especially by adopting appropriate legislation and fostering international co-operation.

”In 1997 the European Council organized a committee of experts with a view to design and draft a Cybercrime Convention specifically for the purpose of controlling criminal conduct via the internet. Non member states to the European Community such as Japan, the United States, Canada and South Africa also contributed to this organization. Several drafts were completed and the final version received approval from the European Council on Crime Problems in 2001 and was published.

By November 2001 the Convention was open for ratification by Member States and third parties such as Japan, the United States, Canada, Mexico, South Africa and the Vatican. On August 3rd last year the United States ratified the Convention 2001. The Parliamentary Assembly to the European Council recommended the addition of a protocol on the control and regulation of published racism via the internet by criminalizing such activities. The recommendation appeared in Opinion No. 226 (2001) and specifically provides as follows:

“Finally, the Assembly recommends immediately drawing up a protocol to the new convention under the title “Broadening the scope of the convention to include new forms of offence”, with the purpose of defining and criminalising the dissemination of racist propaganda, abusive storage of hateful messages, use of the Internet for trafficking in human beings, and the obstruction of the functioning of computer systems by spamming (sending junk e-mail). ” The protocol on racism was available for signatures in January of 2003 and while thirty member states signed it only a handful of members ratified it.

The ratifying states are Cyprus, Albania, France, Slovenia, Denmark and the former Yugoslav Republic of Macedonia. The protocol became binding in March 2006. The Council of Europe Cybercrime Convention 2001 has as its primary goal the harmonizing of cybercrime substantive and procedural laws on a global level. Specifically, Section 1 requires that members to the Council of Europe Cybercrime Convention 2001 implement domestic legislation that criminalizes a broad range of improper and intentional computer related activities.

These activities are entitled “Offences against the confidentiality, integrity and availability of computer data and systems”  as “illegal access” , “illegal interception” , “data interference” , “system interference”  and “misuse of devices”. Title 2 of The Council of Europe Cybercrime Convention 2001 goes on to make provision of the implementation by member states of domestic laws criminalizing “computer-related offences” such as “computer-related forgery”  and “computer-related fraud.

” Title 3 of The Council of Europe Cybercrime Convention 2001 requires that member states criminalize the publication of child pornographic material via a computer system. It further dictates a common definition of child pornography. Title 4, Article 10 makes provision for harmonizing of criminal offences relating to copyright infringement  and Title 5, Article 11 requires that member states make provision for criminalizing complicity in all cybercrime activities. Article 12 of Title 5 establishes a cohesive means of enforcing corporate liability in respect of cybercrime on an international level among its member states.

Article 13 of the Council of Europe Cybercrime Convention 2001requires that member states establish cohesive sanctions in respect of the criminal offences created by domestic legislative provision. Article 13(1) and (2) provide as follows: “1    Each Party shall adopt such legislative and other measures as may be necessary to ensure that the criminal offences established in accordance with Articles 2 through 11 are punishable by effective, proportionate and dissuasive sanctions, which include deprivation of liberty.

Each Party shall ensure that legal persons held liable in accordance with Article 12 shall be subject to effective, proportionate and dissuasive criminal or non-criminal sanctions or measures, including monetary sanctions. ” Section 2, Title of the Council of Europe Cybercrime Convention 2001 makes provision for common procedural laws among member states. Article 14 states simply that: “Each Party shall adopt such legislative and other measures as may be necessary to establish the powers and procedures provided for in this section for the purpose of specific criminal investigations or proceedings. ”