Home -> Law Blog Directory -> Intellectual Property Law Blogs -> IBLS Internet Law Blog

Intellectual Property Law

: IBLS Internet Law Blog

What Conducts Does the European Convention on Cybercrime Criminalize?

By Martha L. Arias

The European Union (EU) member states signed the European Convention on Cybercrime (Cybercrime Convention) in 2001.  It goal is to combat cybercrime among member states by harmonizing legislation, facilitating investigation and prosecution at both the domestic and international level, and providing  the means for fast and reliable cooperation.  The EU sought the need to protect confidentiality, computer systems, networks and computer data, and prevent the misuse of these systems and data by criminalizing computer-related conducts such as fraud and forgery, data and system interference, misuse of electronic devises, illegal content material involving children, and illegal access. The Cybercrime Convention orders member states to criminalize within their domestic legislation, fourth specific types of conducts.

The EU Cybercrime Convention, chapter II, directs member states to criminalize within their domestic legislations (1) "offences against the confidentiality, integrity and availability of computer data and systems."  These offenses include the following conducts:

(a) illegal access.  Member states must make illegal the intentional access to the whole of any part of a computer system without any right.

(b) illegal interception.    This conducts penalizes the intentional interception, without a right, made by technical means, of non-public transmission of computer data to, from or within a computer system.

(c) data interference.  Member states were required to criminalize the intentional damaging, deletion, deterioration, alteration, or suppression of computer data without right.

(d) system interference.  This conduct involves the intentional hindering of a computer system, without a right of the function of the computer system, by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data.

(e) misuse of devices. This conduct involves the intentional and without right production, sale, procurement for use, import, distribution or otherwise making available of a device, including a computer program, designed to commit any other offense described in this convention, or the production of a password, code, or similar data that facilitates some criminal conducts described in this convention. 

(2) Chapter II also requires member states to penalize computer-related offenses such as (a) computer-related forgery.  Member states must attach criminal liability to the intentional (intent to defraud must be present) and without right input, alteration, deletion, or suppression of computer data resulting in inauthentic data with the intent to use it as it were authentic; and (b) computer related fraud.  This involves the causing of property loss to another person any input, alteration, deletion or suppression of computer data, and     any interference with the functioning of a computer system. 

(3) Content-Related offenses is another set of offenses that the Cybercrime Convention orders member states to penalize.  These offenses concretely related to the production, offering, distributing or transmitting, procuring, and possessing sexually explicit material involving children, through the use of computer systems.  The Convention states that a child is any person under 18 years of age but member states may provide a lower-age limit that shall not be less than 16 years.   These offenses include real children, a person appearing to be minor, and realistic images depicting a minor.  

(4) Offenses related to infringements of copyright and related rights.  The Cybercrime Convention order states to criminalize the "willful" infringement of (a) copyrights by means of a computer system, and according to the principles established in the Paris Act, the Bern Convention, and the Trade-Related Aspects of Intellectual Property.  This is not applicable to moral rights conferred by such conventions; and (b) copyright-related rights by means of a computer system, and according to principles under the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention), the Agreement on Trade-Related Aspects of Intellectual Property Rights and the WIPO Performances and Phonograms Treaty, with the exception of any moral rights conferred by such conventions. The Cybercrime Convention allow member states to reserve the right not to impose criminal liability for the above infringement conducts if other effective remedy is available in the member state and such reservation does not derogate the international obligations of the EU members.

Because the Cybercrime Convention entered into force in 2001, most member states have already passed domestic legislation criminalizing the above conducts. According to this Convention, the intentional aiding and abetting shall also be penalized; and member states shall adopt measures to ensure that legal persons can be held liable for these offenses.

Internet-related fraud is constantly increasing in the European Union. Thus, victims of Internet fraud and forgery, as they are computer-related, should report these crimes to their domestic law enforcement authorities or to the authorities in those countries where the scammer or criminal is located. It is not clear at this point yet, how efficient enforcement against cybercrime fraud is among the EU member states. 

 

Full post as published by IBLS Internet Law Blog on January 19, 2009 (boomark / email).