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[803] Explanatory Report of the Convention on Cybercrime (185), No. 10.
[804] The full text of the Convention 185 (Convention on Cybercrime), the First Additional Protocol and the list of signatures and ratifications are available at: http://www.coe.int.
[805] Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Montenegro Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, The Former Yugoslav Republic of Macedonia, Ukraine, United Kingdom, Canada, Japan, South Africa, United States.
[806] Albania, Armenia, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Italy, Latvia, Lithuania, Netherlands, Norway, Romania, Serbia, Slovakia, Slovenia, The Former Yugoslav Republic of Macedonia, Ukraine, United States.
[807] The need for a ratification is laid down in Article 36 of the Convention:
Article 36 - Signature and entry into force
1) This Convention shall be open for signature by the member States of the Council of Europe and by non-member States which have participated in its elaboration.
2)This Convention is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
[808] Draft Code of Criminal Procedure, written by the Advisory Committee on the Reform of Criminal Procedural Legislation, set up by Decree No. 115 of the National Executive Power of 13 February 2007 (Boletfn Oficial of 16 February 2007).
[809] Draft Electronic Crime Act 2006
[810] Draft Act Defining Cybercrime, providing for Prevention, Suppression and Imposition of Penalties therefore and for other Purposes, House Bill No. 3777.
[811] Draft Law of Regulating the protection of Electronic Data and Information And Combating Crimes of Information, 2006.
829 Draft Cybercrime and Computer related Crimes Bill 2007, Bill No. 17 of 2007.
[813] Draft Computer Security and Critical Information Infrastructure Protection Bill 2005.
[814] Interpol highlighted the importance of the Convention on Cybercrime in the Resolution of the 6th International Conference on Cyber Crime, Cairo: "That the Convention on Cyber Crime of the Council of Europe shall be recommended as providing a minimal international legal and procedural standard for fighting cyber crime. Countries shall be encouraged to consider joining it. The Convention shall be distributed to all Interpol member countries in the four official languages.", available at: http://www.interpol.com/Public/TechnologyCrime/Conferences/6thIntConf/Resolution.asp; The 2005 WSIS Tunis Agenda points out: „We call upon governments in cooperation with other stakeholders to develop necessary legislation for the investigation and prosecution of cybercrime, noting existing frameworks, for example, UNGA Resolutions 55/63 and 56/121 on "Combating the criminal misuse of information technologies" and regional initiatives including, but not limited to, the Council of Europe's Convention on Cybercrime", available at:
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http://ec.europa.eu/information_society/activities/internationalrel/docs/wsis/tunis_agenda.pdf; APEC called for economies to study the Convention on Cybercrime, see: ITU Global Cybersecurity Agenda / High-Level Experts Group, Global Strategic Report, 2008,
page 18, available at: http://www.itu.int/osg/csd/cybersecurity/gca/global_strategic_report/index.html; OAS called for an evaluation of the Convention while designing Cybercrime legislation, see: ITU Global Cybersecurity Agenda / High-Level Experts Group, Global Strategic Report, 2008, page 19, available at: http://www.itu.int/osg/csd/cybersecurity/gca/global_strategic_report/index.html
[815] Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems, ETS No. 189, available at: http://conventions.coe.int.
[816] Explanatory Report to the First Additional Protocol to the Council of Europe Convention on Cybercrime No. 4: "The committee drafting the Convention discussed the possibility of including other content-related offences, such as the distribution of racist propaganda through computer systems. However, the committee was not in a position to reach consensus on the criminalisation of such conduct. While there was significant support in favour of including this as a criminal offence, some delegations expressed strong concern about including such a provision on freedom of expression grounds. Noting the complexity of the issue, it was decided that the committee would refer to the European Committee on Crime Problems (CDPC) the issue of drawing up an additional Protocol to the Convention."
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[817] Regarding the principle of freedom of speech see: Tedford/HerbeckHaiman, Freedom of Speech in the United States, 2005; Barendt, Freedom of Speech, 2007; Baker; Human Liberty and Freedom of Speech; Emord, Freedom, Technology and the First Amendment, 1991; Regarding the importance of the principle with regard to electronic surveillance see: Woo/So, The case for Magic Lantern: September 11 Highlights the need for increasing surveillance, Harvard Journal of Law & Technology, Vol 15, No. 2, 2002, page 530 et seqq; Vhesterman, Freedom of Speech in Australian Law; A Delicate Plant, 2000; Volokh, Freedom of Speech, Religious Harassment Law, and Religious Accommodation Law, Loyola University Chicago Law Journal, Vol. 33, 2001, page 57 et. seq., available at: http://www.law.ucla.edu/volokh/harass/religion.pdf; Cohen, Freedom of Speech and Press: Exceptions to the First Amendment, CRS Report for Congress 95-815, 2007, available at: http://www.fas.org/sgp/crs/misc/95- 815.pdf.
[818] United Nations Conference on Trade and Development, Information Economy Report 2005, UNCTAD/SDTE/ECB/2005/1, 2005, Chapter 6, page 234, available at: http://www.unctad.org/en/docs/sdteecb20051ch6_en.pdf.
[819] Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Croatia, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Iceland, Latvia, Lithuania, Luxembourg, Malta, Moldova, Montenegro Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovenia, Sweden, Switzerland, The Former Yugoslav Republic of Macedonia, Ukraine.
[820] Albania, Armenia, Bosnia and Herzegovina, Croatia, Cyprus, Denmark, France, Latvia, Lithuania, Norway, Slovenia, The Former Yugoslav Republic of Macedonia, Ukraine
[821] Council of Europe - Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (CETS No. 201).
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[822] Austria, Belgium, Bulgaria, Croatia, Cyprus, Finland, France, Germany, Greece, Irland, Lithuania, Moldova, Netherlands, Norway, Poland, Portugal, Romania, San Marino, Serbia, Slovenia, Sweden, The former Yugoslav Republic of Macedonia, Turkey. Denmark, Iceland, Italy, Ukraine and the United Kingdom followed (July 2008).
[823] For more details see Gercke, The Development of Cybercrime Law, Zeitschrift fuer Urheber- und Medienrecht 2008, 550ff.
[824] The European Union is a supranational and intergovernmental union of today 27 member states from the European continent.
[825] Satzger, International and European Criminal Law, Page 84; Kapteyn/VerLooren van Themaat, Introduction to the Law of the European Communities, Page 1395.
[826] Regarding the Cybercrime legislation in respect of Computer and Network Misuse in EU Countries see: Baleri/Somers/Robinson/Graux/Dumontier, Handbook of Legal Procedures of Computer Network Misuse in EU Countries, 2006.
[827] Communication of 8 December 1999 on a Commission initiative for the special European Council of Lisbon, 23 and 24 March 2000 - eEurope - An information society for all - COM 1999, 687.
[828] Communication From The Commission To The Council, The European Parliament, The Economic And Social Committee And The Committee Of The Regions - Creating a Safer Information Society by Improving the Security of Information Infrastructures and Combating Computer-related Crime26.1.2001, C0M(2000) 890.
[829] Communication From The Commission To The Council, The European Parliament, The Economic And Social Committee And The Committee Of The Regions Creating a Safer Information Society by Improving the Security of Information Infrastructures and Combating Computer-related Crime, C0M(2000) 890, Page 23.
[830] Communication From The Commission To The Council, The European Parliament, The Economic And Social Committee And The Committee Of The Regions Creating a Safer Information Society by Improving the Security of Information Infrastructures and Combating Computer-related Crime, COM(2000) 890, Page 23.
[831] Communication From The Commission To The Council, The European Parliament, The Economic And Social Committee And The Committee Of The Regions Creating a Safer Information Society by Improving the Security of Information Infrastructures and Combating Computer-related Crime, COM (2000) 890, Page 31.
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[832] Communication From The Commission To The Council, The European Parliament, The Economic And Social Committee And The Committee Of The Regions Creating a Safer Information Society by Improving the Security of Information Infrastructures and Combating Computer-related Crime, COM (2000) 890, Page 32.
[833] "Network and Information Security" A European Policy approach - adopted 6 June 2001.
[834] For example the Council in 1999, available at: http://db.consilium.eu.int/de/Info/eurocouncil/index.htm.
[835] Proposal of the Commission for a Council Framework Decision on attacks against information systems - 19. April 2002 - COM (2002) 173. The legal basis for the Framework Decision, indicated in the preamble of the proposal for the Framework Decision is Articles 29, 30(a), 31 and 34(2)(b) of the Treaty on European Union. See: Gercke, Framework Decision on Attacks against Information Systems, CR 2005, 468 et seq.
[836] Council Framework Decision 2005/222/JHA of 24 February 2005 on attacks against information systems.
[837] See the explanation of the Framework Decision in the Proposal For A Council Framework Decision on combating serious attacks against information systems, No. 1.6:
"Legislative action at the level of the European Union also needs to take into account developments in other international fora. In the context of approximation of substantive criminal law on attacks against information systems, the Council of Europe (C.o.E.) is currently the most far-advanced. The Council of Europe started preparing an international Convention on cyber-crime in February 1997, and is expected to complete this task by the end of2001. The draft Convention seeks to approximate a range of criminal offences including offences against the confidentiality, integrity and availability of computer systems and data. This Framework Decision is intended to be consistent with the approach adopted in the draft Council of Europe Convention for these offences."
854 Framework Decision 2003/80/JHI, OJ L 29, 5.2.2003.
[839] Decision of the Court of Justice of the European Communities, 13.09.2005, Case C-176/03.
[840] "It follows from the foregoing that, on account of both their aim and their content, Articles 1 to 7 of the framework decision have as their main purpose the protection of the environment and they could have been properly adopted on the basis of Article 175 EC. That finding is not called into question by the fact that Articles 135 EC and 280(4) EC reserve to the Member States, in the spheres of customs cooperation and the protection of the Community's financial interests respectively, the application of national criminal law and the administration of justice. It is not possible to infer from those provisions that, for the purposes of the implementation of environmental policy, any harmonisation of criminal law, even as limited as that resulting from the framework decision, must be ruled out even where it is necessary in order to ensure the effectiveness of Community law. In those circumstances, the entire framework decision, being indivisible, infringes Article 47 EU as it encroaches on the powers which Article 175 EC confers on the Community."
[841] Communication From The Commission To The European Parliament And The Council on the implications of the Court's judgment of 13 September 2005 (Case C-176/03 Commission v Council), 24.11.2005, COM(2005) 583.
[842] 2005/0182/COD
[843] Gercke, The Development of Cybercrime Law in 2005, Zeitschrift fuer Urheber- und Medienrecht 2006, 286.
[844] Communication from the Commission to the European Parliament, the Council and the Committee of the Regions towards a general policy on the fight against cyber crime, COM (2007) 267. For more information see: ITU Global Cybersecurity Agenda / High-Level Experts Group, Global Strategic Report, 2008, page 17, available at: http://www.itu.int/osg/csd/cybersecurity/gca/global_strategic_report/index.html.
[845] Draft Proposal for a Council Framework Decision amending Framework Decision 2002/475/JHA on combating terrorism,
[846] COM(2007) 650.
862 "Article 4 of the Framework Decision on combating terrorism states that inciting, aiding or abetting terrorist offences should be made punishable by the Member States. Article 2 of the same instrument requires Member States to hold those directing a terrorist group or participating in its activities criminally liable. However, these provisions do not explicitly cover the dissemination of terrorist propaganda and terrorist expertise, in particular through the Internet."
[847] "training for terrorism" means to provide instruction in the making or use of explosives, firearms or other weapons or noxious or hazardous substances, or in other specific methods or techniques, for the purpose of committing one of the acts listed in Article 1(1), knowing that the skills provided are intended to be used for this purpose.
[848] The Organisation for Economic Co-operation and Development was founded 1961. It has 30 member states and is based in Paris. For more information see: http://www.oecd.org.
[849] Schjolberg/Hubbard, Harmonizing National Legal Approaches on Cybercrime, 2005, page 8, available at: http://www.itu.int/osg/spu/cybersecurity/ presentations/session12_schjolberg.pdf.
866 OECD, Computer-related Criminality: Analysis of Legal Policy in the OECD Area, OECD, Report DSTI-ICCP 84.22 of 18 April 1986.
[851] In 1992 the Council of the OECD adopted the Recommendation concerning Guidelines for the Security of Information Systems. The 24 OECD Member countries adopted the Guidelines later.
[852] Adopted by the OECD Council at its 1037th Session on 25 July 2002. The 2002 OECD Guidelines for the Security of Information Systems and Networks: Towards a Culture of Security, available at: http://www.oecd.org/document/42/0,3343,en_2649_34255_15582250_1_1_1_1,00.html
[853] Spam Issue in Developing Countries. Available at: http://www.oecd.org/dataoecd/5/47/34935342.pdf.
[854] See Spam Issue in Developing Countries, Page 4, available at: http://www.oecd.org/dataoecd/5/47/34935342.pdf.
[855] The report is available at: http://www.legislationline.org/upload/ lawreviews/6c/8b/82fbe0f348b5153338e15b446ae1.pdf.
[856] The Asia-Pacific Economic Cooperation (APEC) is a group of Pacific Rim countries dealing with the improvement of economic and political ties that has 21 members.
[857] APEC Leaders' Statement On Fighting Terrorism And Promoting Growth, Los Cabos, Mexico 26 October 2002. Regarding the national legislation on Cybercrime in the Asian-Pacific Region see: Urbas, Cybercrime Legislation in the Asia-Pacific Region, 2001, available at: http://www.aic.gov.au/conferences/other/urbas_gregor/2001-04-cybercrime.pdf; See in this regards as well: ITU Global Cybersecurity Agenda / High-Level Experts Group, Global Strategic Report, 2008, page 18, available at: http://www.itu.int/osg/csd/cybersecurity/gca/global_strategic_report/index.html.
[858] "We also call for closer cooperation between law enforcement officials and businesses in the field of information security and fighting computer crime" APEC Leaders' Statement On Fighting Terrorism And Promoting Growth, Los Cabos, Mexico, 26 October 2002.
[859] Cybercrime Legislation and Enforcement Capacity Building Project - 3rd Conference of Experts and Training Seminar, APEC Telecommunications and Information Working Group, 32nd Meeting, 5-9 September 2005, Seoul, Korea.
[860] "Economies are currently implementing and enacting cybersecurity laws, consistent with the UN General Assembly Resolution 55/63 (2000) and the Convention on Cybercrime (2001). The TEL Cybercrime Legislation initiative and Enforcement Capacity Building Project will support institutions to implement new laws."
[861] The APEC Telecommunications and Information Working Group was founded in 1990. It aims to improve telecommunications and information infrastructure in the Asia-Pacific region by developing information policies. For more information see:
http://www.apec.org/apec/apec_groups/som_committee_on_economic/working_groups/telecommunications_and_information.html
[862] For more information see:
http://www.apec.org/apec/apec_groups/som_committee_on_economic/working_groups/telecommunications_and_information.Media libDownload.v1.html?url=/etc/medialib/apec_media_library/downloads/som/mtg/2002/word.Par.0204.File.v1.1
[863] See:
http://www.apec.org/apec/apec_groups/som_committee_on_economic/working_groups/telecommunications_and_information.html
[864] The Ministers stated in the declaration "their call for continued collaboration and sharing of information and experience between member economies to support a safe and trusted ICT environment including effective responses to ensure security against cyber threats, malicious attacks and spam." For more information see:
http://www.apec.org/apec/apec_groups/som_committee_on_economic/working_groups/telecommunications_and_information.html
[865] See "Model Law on Computer and Computer Related Crime", LMM(02)17, Background information.
[866] Bourne, 2002 Commonwealth Law Ministers Meeting: Policy Brief, page 9, available at: http://www.cpsu.org.uk/downloads/2002CLMM.pdf.
[867] See: http://www.thecommonwealth.org/shared_asp_files/uploadedfiles/%7BDA109CD2-5204-4FAB-AA77- 86970A639B05%7D_Computer%20Crime.pdf (Annex 1).
[868] "Model Law on Computer and Computer Related Crime", LMM(02)17; The Model Law is available at: http://www.thecommonwealth.org/shared_asp_files/uploadedfiles/%7BDA109CD2-5204-4FAB-AA77-
86970A639B05%7D_Computer%20Crime.pdf. For more information see: Bourne, 2002 Commonwealth Law Ministers Meeting: Policy Brief, page 9, available at: http://www.cpsu.org.uk/downloads/2002CLMM.pdf.; Angers, Combating Cyber-Crime: National Legislation as a pre-requisite to International Cooperation in: Savona, Crime and Technology: New Frontiers for Regulation, Law Enforcement and Research, 2004, page 39 et seq.; United Nations Conference on Trade and Development, Information Economy Report 2005, UNCTAD/SDTE/ECB/2005/1, 2005, Chapter 6, page 233, available at: http://www.unctad.org/en/docs/sdteecb20051ch6_en.pdf.
[869] The League of Arab States is a regional organisation with currently 22 members.
[870] See: ITU Global Cybersecurity Agenda / High-Level Experts Group, Global Strategic Report, 2008, page 20, available at: http://www.itu.int/osg/csd/cybersecurity/gca/global_strategic_report/index.html.
887 Draft Electronic Crime Act 2006
[872] Draft Law of Regulating the protection of Electronic Data and Information And Combating Crimes of Information, 2006.
^ Law No.2 of 2006, enacted in February 2006.
[874] Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the UAE
Non official transation of the Recommendations of the Conference on Combating Cybercrime in the GCC Countries, 18th of June 2007, Abu Dhabi:
1) Calling for the adoption of a treaty by the Gulf Cooperation Council (GCC) countries, inspired by the Council of Europe Cybercrime convention, to be expanded later to all Arab Countries.
2) Calling all GCC countries to adopt laws combating Cybercrime inspired by the model of the UAE Cybercrime Law.
3) Calling for the adoption of laws in relation to procedural matters such as seizure, inspection and other investigation procedures for such special type of crimes.
5) Providing trainings to inspection and law enforcement officials on dealing with such crimes.
6) Providing sufficient number of experts highly qualified in new technologies and Cybercrime particularly in regard to proofs and collecting evidence.
7) Recourse to the Council of Europe's expertise in regard to Combating Cybercrime particularly in regard to studies and other services which would contribute in the elaboration and development of local countries legislation in GCC countries.
8) Harmonization of the legislations in Arab and particularly GCC countries in regard to basic principles in combating this type of crimes on both procedural and substantive level.
9) Increasing cooperation between Public and Private sectors in the intent of raising awareness and exchange of information in the Cybercrime combating field.
[876] The Organisation of American States is an international organisation with 34 active Member States. For more information see: http://www.oas.org/documents/eng/memberstates.asp.
[877] For more information see http://www.oas.orgjuridico/english/cyber.htm and the Final report of the Fifth Meeting of REMJA, which contains the full list of reports, results of the plenary session and conclusions and recommendations at: http://www.oas.org/juridico/english/ministry_of_justice_v.htm.
[878] The full list of recommendations from the 2000 meeting is available at: http://www.oas.org/juridico/english/niinistry_of_justice_iii_meeting.htm#Cyber; The full list of recommendations from the 2003 meeting is available at: http://www.oas.org/juridico/english/ministry_of_justice_v.htm.
[879] The full list of recommendations is available at: http://www.oas.org/juridico/english/ministry_of_justice_v.htm
[880] The OAS' General Secretariat through the Office of Legal Cooperation of the Department of International Legal Affairs serves as the Technical Secretariat to this Group of Experts, pursuant to the resolutions of the OAS General Assembly. More information on the Office of Legal Cooperation is available at: http://www.oas.org/dil/department_office_legal_cooperation.htm.
[881] The Conclusions and Recommendation of the Meetings of Ministers of Justice or of Ministers or Attorneys General of the Americas and Cyber Crime are available at: http://www.oas.org/juridico/english/cyber_meet.htm.
[882] In addition the Working Group of Governmental Experts on cybercrime recommended that training be provided in the management of electronic evidence and that a training program be developed to facilitate states link-up to the 24 hour/7 day emergency network established by the G-8 to help conduct cyber-crime investigations. Pursuant to such recommendation, three OAS Regional Technical Workshops were held during 2006 and 2007, with the first being offered by Brazil and the United States, and the second and third offered by the United States. The List of Technical Workshops is available at: http://www.oas.org/juridico/english/cyber_tech_wrkshp.htm.
[883] In the meantime the OAS has established joint collaboration with the Council of Europe and attended and participated in the 2007 Octopus Interface Conference on Cooperation against cybercrime. See:
http://www.coe.int/t/dghl/cooperation/economiccrime/cybercrime/cy%20activity%20Interface2007/Interface2007_en.asp
[884] Conclusions and Recommendations of REMJA-VII, 2008, available at: http://www.oas.org/juridico/english/cybVII_CR.pdf
[885] Sofaer, Toward an International Convention on Cyber in Seymour/Goodman, The Transnational Dimension of Cyber Crime and Terror, page 225, available at: http://media.hoover.org/documents/0817999825_221.pdf.
[886] The Stanford Draft International Convention (CISAC) was developed as a follow up to a conference hosted in Stanford University in the United States in 1999. The text of the Convention is published in: The Transnational Dimension of Cyber Crime and Terror, page 249 et seq., available at: http://media.hoover.org/documents/0817999825_249.pdf; For more information see: Goodman/Brenner, The Emerging Consensus on Criminal Conduct in Cyberspace, UCLA Journal of Law and Technology, Vol. 6, Issue 1, 2002, page 70, available at: http://www.lawtechjournal.com/articles/2002/03_020625_goodmanbrenner.pdf; Sofaer, Toward an International Convention on Cyber in Seymour/Goodman, The Transnational Dimension of Cyber Crime and Terror, page 225, available at: http://media.hoover.org/documents/0817999825_221.pdf; ABA International Guide to Combating Cybercrime, 2002, page 78.
[887] Council of Europe Convention on Cybercrime (CETS No. 185), available at: http://conventions.coe.int. For more details about the offences covered by the Convention see below: Chapter 6.1.; Sofaer, Toward an International Convention on Cyber in Seymour/Goodman, The Transnational Dimension of Cyber Crime and Terror, page 225, available at:
http://media.hoover.org/documents/0817999825_221.pdf; Gercke, The Slow Awake of a Global Approach Against Cybercrime, Computer Law Review International, 2006, 140 et seq.; Gercke, National, Regional and International Approaches in the Fight Against Cybercrime, Computer Law Review International 2008, page 7 et. seqq; Aldesco, The Demise of Anonymity: A Constitutional Challenge to the Convention on Cybercrime, Entertainment Law Review, 2002, No. 1, available at: http://elr.lls.edu/issues/v23-issue1/aldesco.pdf; Jones, The Council of Europe Convention on Cybercrime, Themes and Critiques, 2005, available at: http://www.cistp.gatech.edu/snsp/cybersecurity/materials/callieCOEconvention.pdf; Broadhurst, Development in the global law enforcement of cyber-crime, in Policing: An International Journal of Police Strategies and Management, 29(2), 2006, page 408 et seq; Adoption of Convention on Cybercrime, International Journal of International Law, Vol 95, No.4, 2001, page 889 et seq.
[888] Regarding the application of Art. 23 et seq. with regard to tradition crimes see: Explanatory Report to the Convention on Cybercrime, No. 243.
[889] For details see Gercke, National, Regional and International Legislative Approaches in the Fight Against Cybercrime, Computer Law Review International, 2008, page 7 et seq.
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