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Cyber Racism and the Council of Europe's reply

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Cyber Racism and the Council of Europe's reply
Henrik W.K.Kaspersen [1]

Contents

1. Introduction
2. Racist propaganda and human rights
3. Criminal repression of racist and xenophobic propaganda
4. Cybercrime Convention
5. Concluding observations

The Cyber Crime
Convention of the Council of Europe was opened for signature on November
23, 2001. Next month the Council of Ministers will adopt the First Additional
Protocol to the Cyber Crime Convention, which is directed at the criminalisation
of racist and xenophobic conduct in computer networks. The protocol not
only provides for a harmonised approach with regard the criminalisation
of such harmful conduct, it also makes the investigative powers of the
Cyber Crime Convention applicable to the investigation of racist and xenophobic
crimes in electronic environments. The Cyber Crime Convention contains
a number of new investigative measures, in particular directed at investigations
in electronic communication networks, which enable mutual assistance in
a modern, flexible, and - if necessary - expedited way.

This paper will
deal with the phenomenon of racism and xenophobia in Europe and the role
of the international electronic communication facilities. Further, the
content of the first additional Protocol will be discussed, against the
background of the European human rights tradition, in particular other
fundamental rights, such as freedom of speech. After presenting an outline
of the Cyber Crime Convention, the relevant investigative powers will
be discussed as well as the possibilities of mutual assistance.

1. Introduction

Racism - today usually
referred to as racism and xenophobia - is a global phenomenon that deserves
global attention and countermeasures. Two very important achievements
and events should be mentioned here. The enactment of the UN-Convention
CERD in 1965 and its related institutions, as well as the World Conference
against racism in Durban, September 2001. The fact that the conference
could be organised in a place where racial discrimination previously had
been institutionalised, gives at least the impression that some progress
has been made.

In post-war Europe,
it seemed that racism could be mainly identified with pro-Nazi-attitudes
and anti-Semitism. Today still many of the racist and xenophobic resentments
come down to anti-Semitism, in particular nurtured by the ever-lasting
conflict between Israel and the Palestinians. In fact, also other groups
in Europe - not only during World War II - were victim of harmful acts
of discrimination and they still are, like the Gypsies and homosexuals.
During the last decades of the twentieth century, however, the growing
flow of migrants from countries from outside Europe has created a new
breeding ground for racial and xenophobic resentments towards a new group
of easy victims. Migration became a big issue during the elections in
some European Countries, resulting in a strong move to right-wing political
parties. [2] Public attention for the issue of racial
discrimination and xenophobia therefore has been revitalised and is broadened
in scope. The concept of racism has not been changed, but the manifestations
of this attitude are more evil and obtrusive than before. [3] Racist and xenophobic attitudes today are (more) manifest towards certain
social groups. [4]

Statistics are -
as usual - a complex matter, because it is not clear what to measure and
what statistics can tell us here. The best one can say is that it comes
down to counting the number of reported incidents, categorised according
to subject matter or type of victim and possibly the medium involved.
Where monitoring groups have been established this number is higher than
in countries where no such groups exist. In general, victims rarely report
cases to the police. From available statistical material it can be concluded
that at least the volume of racist and xenophobic material is increasing
seriously, in particular in connection with the Internet. The European
Monitoring Centre on Racism and Discrimination further admits that it
is even problematic to provide an overview of racial crimes of all fifteen
EU-member states since not all those member-states distinguish racial
crimes from other crimes, law enforcement authorities may not have the
same priorities concerning the investigation and prosecution of such crimes,
there is no common understanding of what crimes under the notion of racial
crimes should be considered and further, most of the information is collected
by NGO's, ethnic minorities or similar groups which makes it difficult
to compare the results. The national reports anyway show a considerable
and still growing number of serious incidents, from racist murder cases
to other incidents. [5]

In these modern times,
the Internet has become an indispensable and important means of communication.
Also racists and racist groups have discovered the benefits of the Internet
as well. Not surprisingly a strong increase of racist and xenophobic propaganda
on the Internet has been reported. Actually, for racist groups the Internet
is essential because:

  • They have no
    access to the regular civilian mass media;
  • Racist groups
    are often internationally organised;
  • Internet technology
    is easy and available at low costs;
  • Repression of
    racist activities on the Internet for several reasons is not efficient. [6]

Racist groups use
the Internet in particular for:

  • Ideology: dissemination
    of ideas and propaganda;
  • Communication:
    e-mail, Usenet (news groups), chat rooms;
  • Commerce: mail
    orders for propaganda material, such as Nazi-paraphernalia;
  • " Alert-system:
    mobilisation of groups.

On the other hand
the Internet can be considered a very important facility to combat racial
and other forms of discrimination as well, as a source of information
and means of co-ordinating international action.

2. Racist propaganda and human
rights

At the international
level, the Council of Europe, as the organisation around the human rights
treaty of Rome, has taken its responsibility concerning the combating
of racism, discrimination and intolerance and has established a number
of important organisations and activities, which involve monitoring developments,
providing for statistical and other information, developing educational
programs and other practical measures, including regulation. [7] Also in the frame of the European Union, since the Amsterdam Treaty, respect
for human rights has become an essential aspect of legislative and other
actions of the European institutions. [8]

Art. 14 of the Rome
Convention (ECHR) prohibits discrimination where it would come to the
denial of any of the human rights as formulated in the Convention. Although
the article contains many factors on which discrimination can be based,
the scope of the article was esteemed too narrow, because it may interfere
with other (fundamental) rights that are not included in this Human Rights
Convention. For this reason, recently the 12th Additional Protocol to
the Convention was adopted and opened for signature. [9] The effect of the additional protocol is that any act of discrimination
would constitute an unlawful interference with human rights. [10]

In connection with
Article 14 of the ECHR the European Court of Human Rights states that
not every distinction or difference of treatment amounts to discrimination.
The Court held that: "a difference of treatment is discriminatory
if it 'has no objective and reasonable justification', that is, if it
does not pursue a 'legitimate aim' or if there is not a 'reasonable relationship
of proportionality between the means employed and the aim sought to be
realised'". [11]

Further, the Human
Rights Court deals with the question of whether prohibitions of racist
propaganda by a State Party are in line with article 10 ECHR concerning
freedom of expression. [12] In general, the court recognises
that freedom of expression constitutes one of the essential foundations
of a democratic society. And further, the Court states that information
and ideas that offend, shock or disturb the State are in principle protected
by article 10 (Handyside case [13]). In the Wingrove
case [14] the Court stated that "No restriction
on freedom of expression, whether in the context of religious beliefs
or in any other, can be compatible with Article 10 unless it satisfies,
inter alia, the test of necessity as required by the second paragraph
of that Article.

In the Jersild judgement [15] the Court took into account that audio-visual
media may have a greater impact than the traditional paper media. Where
the rights of others are concerned the exercise of freedom of expression
brings duties and responsibilities. Further, the Court found that the
form in which information and ideas are disseminated might be protected
under article 10 ECHR. [16]

In applying article
10 ECHR the Court examines whether the measure taken is necessary in a
democratic society (involves the proportionality test) for a legitimate
aim - as enumerated in paragraph 2 of article 10 ECHR - if the prohibition
is regulated clearly and thus foreseeable. The Court accepts a certain
margin of appreciation for the Member Sates in order to justify diversities
in cultural and societal values between the State Parties. From the case
law of the Court it can be concluded that prohibition by a State Party
of the dissemination of all ideas based upon racism or xenophobia is not
incompatible with the right to freedom of opinion and expression. Where
racist and xenophobic issues were involved, freedom of expression only
in a limited number of cases prevailed.

3. Criminal repression of
racist and xenophobic propaganda

3.1 Criminal
law

After this broad
and general introduction I would like to limit the object of my address
in two ways. The first limitation was already that I would deal only with
the dissemination of racist and xenophobic acts in the Internet environment;
the second limitation is that I will only deal with criminal repression
of such acts.

Legislators may choose
to enforce legal standards by means of criminal law. Criteria for criminalisation
could be the harm of the conduct, the impact it has on society as a whole
and the need for effective means of investigation. Further, criminal law
may be applied because of the available sanctions and measures (imprisonment!).
Since criminal provisions should be clear and precise because of the lex
certa principle
, criminalisation of certain conduct may not be indicated.
These criteria, if accepted in all European States at all, have lead to
a patchwork of national criminal provisions, different in scope and content.
Racial and xenophobic discrimination is no exception to that rule.

In the frame of the
Council of Europe the First Additional Protocol concerning criminalisation
of Racist and Xenophobic propaganda over the Internet [17] is about to be enacted. Prior to the Protocol, the Council of Europe enacted
the legal instrument of the Cybercrime Convention of which the First Additional
Protocol is meant to become part of. [18] The protocol
will be discussed first. The Cybercrime Convention and the relation to
the protocol will be discussed thereafter.

3.2 Origin
of the Protocol

During the negotiations
around the Cyber Crime Convention, Parties were highly divided whether
the Convention should contain a criminalisation of the dissemination of
racist and xenophobic material in computer networks. In Europe the general
opinion is that art. 10 ECHR in principle allows for the application of
criminal law in these matters under the circumstances given in section
2 of the Article. The extent to which criminal law should be applied,
however, is left to the appreciation of the individual member state and
is very much related to the way freedom of expression is given shape in
the Constitution or other regulation of that Party. Other non-European
Parties, such as the USA, for that reason are even not able to criminalise
if the conduct does not imply an immanent threat or violence. This diversity
is very well reflected in the number and nature of reservations to the
CERD-Convention of 1965 [19], of which the ratifying
parties so far withdrew none. Therefore, it was decided to take more time
and develop a separate instrument in the form of the first additional
Protocol that would allow Parties to a separate decision to sign the Convention
and the Protocol or only the Convention.

The Protocol was
negotiated from the end of 2001 until April 2001. The text was adopted
by the CDPC [20] in June 2002 and was discussed by
the Parliamentary Assembly of the Council of Europe in last September.
The Assembly has the right to propose amendments to the text, and it did.
Those amendments were discussed in the meeting of the Ambassadors in their
meeting of October 16 and rejected. The text of the Protocol is now ready
for adoption by the Committee of Ministers, the highest institution of
the Council of Europe, in the coming meeting of November 6 and 7 2002
in Strasbourg. The Protocol will be open for signature in January 2002
at the earliest. The Protocol, of course, can only be signed by parties
to the Cybercrime Convention.

3.3 Meaning
of the Protocol

The Protocol is intended
to amend Chapter II of the Cyber Crime Convention, which contains a number
of cyber crimes offences. The Convention discerns four types of such crimes:
c.i.a-offences (directed against computer systems and their content);
computer-related crimes (computer system is instrument); intellectual
property crimes; and content-related crimes (computer system is the environment
of the crime). In the latter category one finds the production and dissemination
of child porn (art. 9). The dissemination of racist and xenophobic expressions
fits in the latter category. For other content-related offences the development
of other additional protocols is possible, such as harmonised offences
concerning illegal gambling or offering of medicaments without medical
prescription.

The protocol determines
which racist and xenophobic acts have to be criminalised by the State
Party involved. Thereto it defines a number of offences that will be discussed
below. The protocol also - and that is a key function - makes the procedural
investigative measures as well as the instruments for international co-operation
available to the investigation of the racist and xenophobic offences as
defined in the protocol. By harmonising the criminalisation of racist
and xenophobic acts the condition of dual criminality - still the usual
condition for mutual assistance - is fulfilled.

3.4 Content
of the Protocol

3.4.1 Scope
The Protocol concentrates on conduct that relates to the electronic
environment of computer systems and networks. As also indicated in the
mother Convention, Parties are obliged to implement the obligations as
undertaken under the Convention and the Protocol. However, art. 13 of
the Vienna Law of Treaties allows them to go beyond these obligations
where the content and the drift of the treaty concerned does not stand
in the way. For conduct as criminalised by the Protocol this means that
Parties will and must consider avoiding discrepancies between the on-line
and the off-line world and therefore, while implementing the content of
the Protocol, reviewing their law in view of making it technology-independent
rather than computer-specific. Secondly, Parties may go further as to
the level of criminalisation, i.e. include other conduct in as far as
not in contravention with the (aim of) the Protocol. [21]

3.4.2 Offences
The protocol defines four independent offences. The Articles are preceded
by a definition of what is called 'racist and xenophobic material'. In
the next articles either this material is the object of the criminalised
conduct or elements of the definition are used to qualify conduct or circumstances.

3.4.3 Definition
of propaganda material

Art. 2 para 1 reads:
For the purposes of this Protocol:
- 'Racist and xenophobic material' means any written material, image,
or any other representation of thoughts and theories, which advocates,
promotes or incites hatred, discrimination or violence against any individual
or group of individuals, based on race, colour, descent, or national or
ethnic origin, as well as religion if used as a pretext for any of these
factors.

Racist or xenophobic
material in this definition is not restricted to writings or documents.
It may include any carrier containing data by which thoughts and theories
are expressed. The material thereto may consist of text, images, sound,
multimedia (including video games) or other formats. The definition does
not say that the material must be directly processable by a computer system
but this follows from the individual offences which all contain the wordings
computer system. [22] The definition does not require
that the content of the material should be directly accessible (e.g. readable).

Under the definition
is comprised propaganda material that propagates certain behaviour. Given
the detestable nature of the theories and thoughts, seemingly neutral
'advocating' is included under 'propagation,' where 'incitement' as a
well-known criminal notion represents the most serious category. The behaviour
that is propagated is to be distinguished in hatred (feelings), discrimination
(attitude) and violence (acts). The Protocol puts those notions together
on a scale of intensity or seriousness. The victims of such propagation
can be an individual person or a group of persons. Legal persons are in
principle not envisaged here. The subjective factors upon which the hatred,
discrimination and violence are based are enumerated in the definition.
It should be borne in mind that those factors have a subjective nature
and may not correspond with objective definitions or the facts of the
case. Only a selected number of those subjective criteria have been taken
up in the definition. These notions nevertheless should be given a broad
interpretation. Other notions, if included in the definition, would lead
to unjustified criminalisation (over-criminalisation). Religion has therefore
been taken up but in a qualified form where other notions like e.g. language
are left out because this is not a factor that under all or most circumstances
would lead to criminal conduct.

In particular concerning
discrimination many other factors have left out such as age, gender, sexual
preferences etc. because in that area most parties will not deal with
such conduct in criminal law. The definition intends to draw a line between
conduct that is illegal but not criminal and conduct that should be criminally
sanctioned.

Art. 3 criminalises
the distributing or otherwise making available to the public through a
computer system of material as defined by art. 2. In the following articles
three notions have been incorporated that were applied in the Cyber Crime
Convention and that should be interpreted in the same manner as in the
frame of the Cyber Crime Convention. [23] The notion
'without right' means that the conduct is illegal and is not justified.
The term 'right' refers to any positive authority or absence of criminal
liability. The precise meaning has to be determined by the implementing
Party. All the offences require that the conduct is committed intentionally.
Likewise as in the Cyber Crime Convention the interpretation of intent necessarily is left to State Parties [24], and therefore
may include dolis eventualis. Further a computer system is defined
in art. 1 under a of the Cyber Crime Convention. This article does not
intend to provide for a precise legal definition of such systems but is
mainly intended to indicate that a computer system can consist of a stand-alone
system (from PC to mainframe) of a computer network (physical or virtual).
E.g. the Internet is a computer system in the sense of the definition
of art. 1 CCC. [25]

The production and
mere possession of racist and xenophobic material is not criminalised.
It is also not illegal to procure oneself with such material, e.g. by
downloading from a particular web site. Distribution or otherwise making
available private communications, (e.g. by e-mail) as long the effect
of such communication is not that the material is sent to multiple receivers.
Posting the material in a newsgroup or in a Chat-session has to be considered
as distribution or making available to the public. [26]

Para 2 of
Article 3 provides for restricted reservation possibilities. Para 2 sees in particular to those countries where the dissemination of any
discriminatory material is not criminalised but nevertheless is restrained
on the basis of administrative and civil law, provided that there are
adequate sanctions and remedies.

In addition para 3 allows a partial reservation for those countries where constitutional
or other fundamental rules concerning freedom of expression would stand
in the way to criminaling the dissemination of discriminatory material. [27]

Art. 4 deals with
racist and xenophobic motivated threats against individuals or groups
of individuals. The threat must involve the commission of a serious crime.
It is left to the implementing Party to define a serious crime. Not all
crimes are appropriate to make part of a threat, seriousness often is
related to the level of the maximum penalty, and sometimes certain types
are appointed as serious crimes when committed in association or under
aggravating circumstances. Any attempt to harmonise here would only lead
to a shallow common result and should therefore be left to the discretion
of the individual State Parties. In general, it may be expected that threats
are covered by existing law. The presence of this article in the Protocol
invites the State Parties anyway to criminalise threats motivated by racial
and xenophobic considerations or, maybe, consider racial and xenophobic
motivation as aggravating circumstances. [28]

Art. 5 deals with
racist and xenophobic motivated insults through a computer system. In
the frame of the article insulting means causing prejudice to the honour
or dignity of a person. The expression therefore needs to be offensive,
contemptuous or invective. [29] The insult must be
done in public. i.e not as a part of a private or confidential e-mail
communication. Since not all State Parties would like to criminalise all
aspects of the conduct, in particular in relation to discrimination, a
limited reservation is possible.

Art. 6 deals with
the denial or gross minimisation of acts of genocide or crimes against
humanity as defined in the relevant UN-instruments. This behaviour is
assumed to be deeply insulting to victims, their relatives or other survivors
of such crimes. State Parties that included such a provision in their
law do not yet refer to the general notions of genocide or crimes against
humanity but to the holocaust. Given the fact that genocide and crimes
against humanity motivated by racism and xenophobia have and are being
committed after W.W. II, the provision was given a more general structure.
It is important that the facts of genocide or crimes against humanity
have been established by independent scientific or equivalent research.
It was thought that there should be reference to the international court
dealing with the prosecution of such crimes as being the proper body to
establish the criminal facts submitted to its jurisdiction. In order to
avoid international disputes the requirement is that the State Party that
has implemented article 6 in its national law has recognised the jurisdiction
of the international court. Of course, it is not contrary to article 6
if the State Party would not raise such a condition or refers to other
sources of independent research provided that no contradiction occurs
with the scope and drift of article 6. In the article it is still explicitly
referred to the Nuremberg Tribunal because for the time being in most
cases it will still concern denial or gross minimisation of the holocaust.
The article provides for a limited reservation possibility. The provision
is in line with a prior decision of the Human Rights Court that denial
or revision of clearly established historical facts - such as the Holocaust
- should not be protected under the freedom of expression of art. 10 ECHR. [30]

At this point I allow
myself some observations on Jones v. Toben in the light of article
6. Actually, the RDA does not contain a specific provision like art. 6.
Therefore the motive to insult and its likely effect have to be established.
Under art. 6 Prot. this not necessary since this is implicit. The case
concerned publication of material on a web site denying or minimising
the holocaust. I cannot comment on procedural issues or relationships
between different Australian Statutes. It should also be taken into account
that Jones v. Toben is a civil case because the Racial Discrimination
Act
does not provide for criminal prosecution and sanctions. Important
is that the Federal Court accepted that a complaint could also be filed
by a person or institution who is not directly a victim but who has interest
that the standards of the RDA are maintained. [31] Under criminal
law this would not be different, because anybody who is aware of a crime
is entitled the report the crime to the police of the prosecution service,
unless the law determines that prosecution is only possible on complaint
of the victim. This usually is not the case with racist and xenophobic
crimes.

Some of the observations
of the court are related to the nature of the factors in the definition
of article 18C RDA. Here Jews are being considered as a group with a common
ethnic origin. As defended supra with regard to article 2 Prot.
- factors on which discrimination is based should not be understood as
scientific terms but as subjective criteria in the mind of the offender.
Questions of whether the tortuous act is directed against Jewish people
as a race or as a group with a common ethnic origin therefore become less
relevant.

The court also examines
whether it is reasonably likely that the material in question is offensive,
insulting, humiliating or intimidating (see paragraphs 82 ff). It should
be stressed that most European criminal laws would not require such conditions
to be fulfilled, but I assume that this is a matter of common law principles
that requires that mens rea has to be demonstrated, as is also
foreseen in the reservation possibility for the article under its paragraph
2. [32] Under most European continental criminal law
systems these effects or intent need not be demonstrated although it may
have to be established that the conduct was intentional and without right,
i.e. without any legal justification. Such could be the case e.g. in the
course of a scientific debate on the basis of newly discovered evidence.
In most denial cases, however, the material is presented as being scientific
but in fact never meets the relevant standards. Similar considerations
can be found in Jones v Toben (see paragraph 101 ff) on the basis
of section 18 D RDA, in particular if the publication is done in good
faith. The court states that as section 18(1) of the RDA requires that
the publication was reasonably likely to offend and that the publication
was done in order to offend (par 83 ff) it is not neccessary that a particular
individual person is offended or insulted by the denial. It is the same
in article 6 of the Protocol.

Para 72 ff
refers to art. 18C(2) RDA and specifies that an act is not done in private
if it a) causes words, sounds, images or writing to be communicated to
the public. I have no knowledge of the understanding of the notion 'communication
to the public', but I assume that this condition easily can be fulfilled
in relation with the WWW. On the Internet, it is in fact the receiver
of certain data who takes the initiative that certain data are being communicated
to him, but the intentional offering of such information by the defendant
is a conditio sine qua non for it to happen. The outcome is the
same as 'communication to the public' in relation to traditional mass
media and therefore can be considered to be subsumed under that term with
reference to the adagium that the on-line rules in principle should
not differ from off-line rules
.

One final remark
on the obligation of the respondent to be restrained from the publication
of ii) any other material with substantially similar content; and iii)
any other material which conveys the following imputations or any of them.
Such a measure would under European law possibly fail the necessity test
under art. 10, para 2 ECHR, if it would not become clear that the defendant
would continue to publish the same material in a different way or at a
different time. The same goes for the restraining order for other future
material that would contain statements as presented in the verdict. Since
the conduct is to be criminalised, direct and effective measures with
adequately prevent similar future publications by the defendant or other
persons.

A last remark on
the Protocol: Article 7 can include the intentional aiding and abetting
to the crimes defined in article 3-6. State Parties may individually determine
that attempts to commit one of the offences is also punishable. [33] Thus, service providers may be liable for the hosting of criminal content
if they would intentionally aid or abet the crime. In this respect the
Cybercrime Convention does not contain specific rules of criminal liability
for (Internet) service providers. The reasons are the (civil) rules laid
down under the European E-commerce Directive that prevented the adoption
of specific (other) criminal liability rules or relating obligations under
the Convention. [34]

4. Cybercrime Convention

4.1 Aims of
the Cybercrime Convention

The development of
the Cyber Crime Convention serves four different aims:

  • Harmonisation
    of cyber crime offences, distinguished in four categories:

    • c.i.a-offences
    • content-related
      offences
    • IPR-offences
    • Content-related
      offences, at present child porn to be supplemented by racism as
      defined in the first additional protocol.

Although the Convention
does not favour the application of dual criminality it is clear
that it still is important in international legal practice. Harmonisation
is necessary in order to avoid data havens but also to facilitate international
co-operation.

  • Harmonisation
    of investigative powers for electronic evidence

    • Investigative
      measures concerning the access stored data in computer systems
    • Investigative
      measures concerning the interception of data flows in computer networks,
      including telecommunication networks
    • Preliminary
      measures concerning vulnerable data.

Harmonisation is
necessary in order to assure that the law of the Party involved gives
access to modern and effective means of criminal investigations in network
environments. Harmonisation is also necessary to make the measures available
to Parties requesting assistance.

  • Facilitating mutual
    assistance
  • Offering an international
    legal framework for future developments.

4.2 Substantive
law issues

Cyber crime offences
are distinguished in four categories:

  • C.i.a-offences:
    criminal conduct directed against the integrity, availability and confidentiality
    of computer systems and computer data they contain.
  • Content-related
    offences: computer fraud and forgery of electronic records.
  • IPR-offences:
    copy right and neighbouring rights.
  • Content-related
    offences, at present child porn (article 9) to be supplemented by racism
    as defined in the first additional protocol. Possibly to be extended
    to other crimes such as illegal gambling or offering of other illegal
    services.

The offences will
not be discussed here.

4.3 Procedural
issues

4.3.1 Scope
The Cybercrime Convention according to its art. 14, para 2 applies
to

  • The criminal offences
    defined in the Convention. The first additional Protocol, according
    to its article 9, includes the offences established in the Protocol
    to the field of application of the investigative measures of the Cybercrime
    Convention;
  • Offences committed
    by means of a computer system;
  • The gathering
    of electronic evidence of any criminal offence. The latter is not intended
    to exclude the application of any other measure under existing law of
    the Party that would render the same result. The text further assumes
    that in the Party concerned electronically stored data is admissible
    in court as evidence of a criminal offence. [35]

4.3.2 Measures
concerning the gathering of stored computer data

In the Convention is clearly delineated between stored data, meaning
data that is already in existence and that as such is available to the
entitled person(s), and data flows that represent a transfer of
data string or - at a less technical level - a communication.

Article 19 of the
Convention stipulates that computer data may be searched and possibly
seized if necessary to serve as evidence. Seizure would usually come down
to making a copy of the data under such circumstances that the integrity
of the copy can be established. A number of additional measures must ensure
the accessibility of such data, like the obligation to provide access
to the location and to the content of the data sought. If appropriate,
the authority extends to the removal or blocking of the data, e.g. where
it would amount to a criminal act or give rise to a criminal act if the
information was left in place. In case of racist propaganda art. 19 would
provide for the authority to remove the material from the computer system
of the suspect.

Article 19 does not
regulate how physical access can be obtained to a computer system. Domestic
law will provide for the classical authorities to search premises and
thereby obtain access to or control over a computer system. Paragraph
2 empowers law enforcement authorities to do investigations in connected
computer systems, provided that the access to the other system has been
authorised to the user whose system is under investigation.

If it is clear what
specific data are needed for a criminal investigation and under the control
of which person- not being the suspect- the data are, the person concerned
may be ordered to produce the data. Article 18 provides for such authority.
Any effort to select the data may be required. The power does not extend
to the elaboration of data held by the person concerned such as applying data mining of files or data bases in order to provide the required
information. The power is essential to obtain information from service
providers about technical addresses and subscriber information (see hereafter).

4.3.3 Flowing
data

The Cybercrime Convention provides for two parallel powers to intercept
the content of any communication over a telecommunication network or computer
network. The power refers to public as well to non public networks. The
system is that the interception/collection is realised through the mandatory
assistance of the service provider or that the service provider has to
tolerate that the operation is carried out directly by law enforcement
authorities. Of course, because of the intrusiveness of the measure a
number of conditions have to be fulfilled, most of these are defined by
national law of the Party concerned and regularly tested before the Human
Rights Court in Strasbourg.

4.3.4 Preliminary
measures

Two completely new measures have been set forth here. Art. 16 authorities
law enforcement authorities to order a person who is in control of specific
data, for the loss of which must be feared, to preserve such data in waiting
of the issuance of a production order for such data. If such an order
does not follow the preserved data may be deleted. The idea behind the
measure is that formal requirements may prevent expedited execution of
production orders. The measure of article 16 should empower any law enforcement
officer to order the retention of such data, if necessary, even orally.
In addition, article 17 provides for a specific measure concerning traffic
data. In order to make it possible to establish the source of a communication
while the line is still 'hot', service providers are obliged under the
measure of art. 17 to check if other service providers are engaged in
the communication and expeditiously inform law enforcement authorities,
thus enabling the expedited issuance of a new order to other service providers
in the chain. Some State Parties will implement the measure as an obligation
for any service provider to pass the preservation order to other service
providers in the chain that in turn will be obliged to preserve the relevant
data.

4.4 International
co-operation

The Cybercrime Convention
supplements the existing instruments for mutual assistance. It makes the
measures of the procedural part available for mutual assistance. If no
mutual assistance instrument is in place between Parties the Cybercrime
Convention itself provides the legal basis for co-operation. Art. 35 requires
that a 24/7 network be established in order to facilitate expedited mutual
assistance.

The Cybercrime Convention
also reflects the present thinking about international law and jurisdiction.
Art. 32 stipulates the cases in which national criminal investigations
may have effect in the territory of another Party. Transborder investigations
are allowed when it concerns publicly available information (e.g. on a
web-site) or when a person voluntarily consents to access information
stored in another country. Under circumstances, execution of art 18 may
have legitimate transborder effects, when the ordered person is under
the jurisdiction of one Party and the ordered data under control of that
person are located in another Party. The search under article 19 of data
in a computer network cannot be extended to systems located in the jurisdiction
of other countries. In such cases mutual assistance has to be sought,
if appropriate, on an expedited basis.

4.5 Framework
nature

Because of what can
be called "technological turbulence", fast and unpredictable
development of new technologies and its applications, it is unlikely that
the Cybercrime Convention is able to catch up with future developments
without adaptation. Thereto is foreseen is a flexible way of amending
the Convention by means of additional Protocols in periodical consultation
of the Parties to the Convention (article 46). The first meeting of the
Parties is foreseen in 2004, when the Convention will be in force anyway
and when it is useful to exchange and discuss information on the implementation
of the Convention in the national laws. Another important issue is that
reservations will be subject to regular review. The Secretary-general
will periodically invite Parties that made use of reservations to motivate
why the reservation should remain in place (article 43, para 3).

5. Concluding observations

  • In Europe combating
    discrimination has again obtained a prominent place on the agenda. Many
    organisations participate in actions; international co-ordination has
    become more important than before.
  • The First additional
    Protocol reflects the common understanding of a vast majority of Parties
    to the Cybercrime Convention as to which conduct in relation with discrimination,
    and related conduct should be criminalised and which conduct should
    not. The gain in comparison with the CERD of 1965 is that the Protocol
    does not allow broad reservations and the reservations are not intended
    to be permanent.
  • The Protocol gives
    access to the measures of the Cybercrime Convention, both for national
    investigations as well as on behalf of mutual assistance. These measures
    provide for effective means of investigation in electronic environment
    and allow for expedited investigative actions. This will considerably
    support efforts to combat discrimination, at least those forms that
    are defined as criminal acts.
  • Criminal law can
    play an important role in the combating of racism and xenophobia. But
    under all circumstances criminal repression should be considered as
    one of the means, maybe the ultimate means to deal with the problem.
    All kind of other efforts remain necessary, either initiated by governments
    but also on the basis of self-regulation by NGO's and other private
    bodies.

Endnotes

1.
The author is Director of the Computer/Law Institute, Vrije Universiteit
Amsterdam the Netherlands. He chaired the expert committees of the Council
of Europe that drafted the Cyber Crime Convention and its first additional
Protocol on Racism and Xenophobia.
2. During the last French presidential elections in the
beginning of this year, left-wing parties expressed their embarrassment
to choose between the sitting president and its extreme right-wing opponent
as: "Elect a crook not a racist!".
3. Bob Purkiss, head of European Monitoring Centre on
Racism and Intolerance, Fighting racism now a priority, see file on racism,
Portail Council of Europe, (http://www.coe.int)
4. See e.g. Hooliganism and racial discrimination towards
coloured football players.
5. EUMC, Diversity and Equality for Europe, Annual Report
2000, Vienna, p.18-48. Remarkably the report deals with Racism and Mass
Media but not with Racism and the Internet.
6. Monitor Racisme en extreem rechts, vierde rapportage,
p. 45 (http://www.meldpunt.nl/content/2001monitor.pdf)

7.
Several actions such as:

  • Establishment
    of European Commission against Racism and Intolerance (ECRI), http://www.ecri.coe.int/
    Publications
    - Countryreports on the basis of a yearly update.
    - Documents adopted by European Conference against Racism, see
    www.coe.int/T/E/human_rights/Ecri/2%2Deuropean%5Fconference/1%2Ddocuments%5Fadopted/

    • Political
      Decision adopted by Ministers of Council of Europe member States
      on 13 October 2000 (European Conference against Racism).
    • General conclusions
      of the European Conference against Racism, 16 October 2000, Euroconf
      (2000) 7 final.
    • Legal instruments
      to combat racism on the Internet, report prepared by the Swiss Institute
      of Comparative Law, Strasbourg August 2000, CRI (2000) 27.
    • General Policy
      Recommendation Combating the dissemination of racist, xenophobic
      and anti-Semitic materiel via the Internet, CRI (2001) 1 adopted
      on 15 December 2000.
    • Annual Report
      on ECRI's activities covering the period from 1 January to 31 December
      2001, Strasbourg 29 May 2002, CRI (2002) 19.

8.
See e.g. the following (legal) documents:

  • Directive 2000/43/EG
    of June 2000 Application of principle of equal treatment of persons
    irrespective race or ethnic origin (PbEG L 180/22 July 19, 2000 term
    of implementation three years).
  • Decision 2000/750/EG
    of the Council of Ministers of November 27 2000. Establishment of communautair
    Action Plan on Combating Discrimination (2001-2006), PbEG L 303/23 December
    2, 2000.
  • Proposal for
    a Council Framework Decision on combating racism and xenophobia, COM
    (2001) 664 final, OJ C 75 E/269 of 26 March 2002.
  • Report of the
    European Parliament on the proposal for a Council Framework Decision
    on combating racism and xenophobia, A5-0189/2002 of 24 May 2002.
  • European Monitoring
    Centre on Racism and Xenophobia, Vienna, (established in 1995, see Pb
    L 151, June 10, 1997)
    Task: provide for reliable and objective information concerning racism,
    xenophobia, anti-Semitism in Europe in view of taking legislative and
    other measures. (http://eumc.eu.int)
    Publications:

    • Annual Report
      2000: Diversity and equality
    • Country reports
    • Racism and
      cultural diversity in the mass media, an overview of research and
      examples of good practice in the EU-member states, 1995-2000.
      Establishment: RAXEN, European Information Network concerning racism
      and xenophobia
      Purpose: the collection and dissemination of such information (http://eumc.eu.int/projects/raxen/raxen.htm)

9.
Art. 14 ECHR

  • The enjoyments
    of rights and freedom set forth in this Convention shall be secured
    without discrimination on any grounds such as sex, race, colour, language,
    religion, political or other opinion, national or social origin association
    with a national minority, property, birth or other status.

    12th Additional
    Protocol to the ECHR, ETS 177 of November 11, 2000, not yet in force.

    Article 1

  • The enjoyment
    of any right set forth by national law…

    It should further
    be noted that the list of factors as enumerated in article 14 is not
    meant to be exhaustive.

10.
It should be stressed that the ECHR is in principle directed towards the
State Parties that undertake obligations to respect the rights of their
citizens. It is, however, accepted in most jurisdictions that the ECHR
also affects horizontal relationships between citizens mutually.
11. Abdulaziz, Cabales and Balkandali v. the United
Kingdom (judgement of 28 May 1985, Series A, No. 94, paragraph 72).
12. Art. 10 ECHR
1. Everybody has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information
and ideas without interference by public authority and regardless of frontiers.
This Article shall not prevent States from requiring the licensing of
broadcast, television, or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions
or penalties as are prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial integrity
of public safety, for the prevention of disorder or crime, for the protection
of health or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in confidence,
or the maintaining of the authority or impartiality of the judiciary.
13. Handyside judgment of 7 December 1976, Series A,
no. 24, p. 23, para. 49.
14. Wingrove judgment of 25 November 199-.
15. Jersild judgment of 23 September 1994
16. Oberschlick v. Austria judgement of 23 May 1991,
Series A no. 204, p. 25, para. 57.
17. Full name: see draft additional Protocol to the
Convention on Cybercrime concerning the criminalisation of acts of a racist
and xenophobic nature committed through a computer system, http://www.coe.int/T/E/Communication_and_Research/Press/Theme_Files/Cyb…
18. ETS 185, signed 23 November 2001 in Budapest (Hungary),
not yet in force.
19. International Convention on the Elimination of All
Forms of Racial Discrimination, New York, December 21, 1965, in force
January 4, 1969. At present signed by 137 states. Many reservations were
made, in particular concerning art. 4, the key article of the Treaty,
e.g. by Belgium , France, Ireland, Italy, Japan, Switzerland, United Kingdom,
United States of America, but also by Australia (http://www.unhchr.ch/html/menu3/b/d_icerdd.htm
en http://www.unhchr.ch/html/menu3/b/treaty2_asp.htm
).
20. European Committee on Crime Problems in which all
the Member States of the Council of Europe, now 43, are represented.
21. See in general the Vienna Convention on the Law
of Treaties.
22. Para 12 Explanatory Memorandum to the Protocol (EMP).
23. See art. 2 para 2 ,and 24-25 EMP.
24. Para 39 EM.
25. Para 22 EM.
26. Para 31 EMP.
27. Para 32 EMP. Paragraph 2 of art. 3 deals with the
position of common law Parties. Paragraph 3 in particularly envisages
the porsition of the Nordic European countries.
28. Para 33 EMP.
29. Para 36 EMP. Note that the concept is different
from defamation.
30. Para 42 EMP refers to the Leideux and Isorni judgement
of September 23, 1998 concerning Naziu-propaganda.
31. In
fact, the complaint was made by Mr Jeremy Jones who is a member of the
victim group. Standing was not granted to a representative organisation
and is not possible regarding complaints under the Racial Discrimaintion
Act
.
32. It is not reccessary to demonstrate intent for either
18C of 18D of the RDA even though it may be relevent evidence.
33. Para
44 EMP.
34. Art. 12-16 establishes no (civil) liability at all
when the service provider transmits data between communicating parties
and has no involvement whatsoever with the content of the data flow (mere
conduit). In case of hosting the service provider is only liable is he
factually knows that he is hosting criminal information. In no case he
is expected to monitor or inspect the information he is hosting and fails
to take measures to have the material removed.
35. Para 141 EM.

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