CyberLaw Blog

With regards to the Internet related terrorism activity, the European Union’s May 2006 revised Action Plan on Terrorism included the development of policies and measures to detect misuse of the Internet by extremist websites, and to enhance co-operation of States against terrorist use of the Internet.

Within the last two years the EU considered developing further legal frameworks to remove illegal content from the Internet, including websites that incite terrorist action, and those providing manuals or instructions for homemade explosives or bombs.

The EU announced in April 2008 the amendment of the Framework Decision on Combating Terrorism. The proposed amendments intend to update the Framework Decision by introducing three new offences, namely, public provocation to commit a terrorist offence, recruitment and training for terrorism. These provisions will apply to the Internet and the EU proposals specifically refer to the use of the Internet for terrorist propaganda as well as for the dissemination of terrorist tactics and instructions on how to manufacture and use bombs or explosives. The proposals also include provisions for co-operation with Internet Service Providers with regards to taking down websites that contain such information. The EU documentation stated that individuals disseminating terrorist propaganda and bomb-making instructions through the Internet can therefore be prosecuted “insofar as such dissemination amounts to public provocation to commit terrorist offences, recruiting for terrorism or training for terrorism and is committed intentionally.”

Finally, the EU documentation states that “courts or administrative authorities will be able to request internet service providers to remove this information according to national rules implementing the Directive on electronic commerce.” The European Commission claimed that “the wording which is proposed is as close as possible to the wording of the Council of Europe Convention on the Prevention of Terrorism.”

In addition to the Cybercrime Convention, the Council of Europe also developed the first additional protocol to the Cybercrime Convention on the criminalisation of acts of a racist or xenophobic nature committed through computer systems (ETS No. 189).

Ratification Status for the Additional Protocol as of April 2008

32 Member States (including the external supporters Canada, and South Africa) have signed the Additional Protocol since it was opened to signature in January 2003, only 11 Member States (Albania, Bosnia and Herzegovina, Cyprus, Denmark, France,  Latvia, Lithuania, Slovenia, Ukraine, and the former Yugoslav Republic of Macedonia) have ratified the Additional Protocol as of April 2008.

Following the initial five ratifications the Additional Protocol came into force on March 1, 2006. The UK is not among the Member States who have signed it so far.

For further information about the Additional Protocol see the following:

• Akdeniz, Y., Stocktaking on efforts to combat Racism on the Internet, background report for the High Level Seminar on Racism and the Internet, Intergovernmental Working Group on the Effective Implementation of the Durban Declaration and Programme of Action, Fourth session, Geneva, 16-27 January 2006, E/CN.4/2006/WG.21/BP.1, published by the United Nations High Commissioner for Human Rights (UNHCHR) Office: Geneva, January 2006, 45pp.
• Akdeniz, Y., An Advocacy Handbook for the Non Governmental Organisations: The Council of Europe’s Cyber-Crime Convention 2001 and the additional protocol on the criminalisation of acts of a racist or xenophobic nature committed through computer systems, Cyber-Rights & Cyber-Liberties, December 2003 (revised and updated in August 2007).
• Akdeniz, Y., “Governing Racist Content on the Internet: National and International Responses,” (2007) University of New Brunswick Law Journal (Canada), Vol. 56, Spring, 103-161. (available upon request via email)

Following the first five ratifications, the Council of Europe’s Cybercrime Convention came into force on July 1, 2004.

Ratification Status as of April 2008

The signing and ratification process for the Cybercrime Convention resulted with 39 Member States (plus the external supporters United States, Canada, South Africa, and Japan and Montenegro) signing and 22 countries (Albania, Armenia, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Denmark, Estonia, Finland, France, Hungary, Iceland, Latvia, Lithuania, Netherlands, Norway, Romania, Slovakia, Slovenia, Ukraine, United States of America, and the former Yugoslav Republic of Macedonia) ratifying the Convention as of April 2008 out of the potential 50 countries (45 CoE Member States plus the above mentioned external supporters).

The UK government had already signed the Convention but there has not been any official discussion about the ratification or implementation of the CyberCrime Convention. The House of Lords Select Committee on Science and Technology in its fifth report of 2007 was critical of this and stated that “this is a matter of concern, particularly as among the provisions in the Convention is a requirement that parties should “afford one another mutual assistance to the widest extent possible for the purpose of investigations or proceedings concerning criminal offences related to computer systems and data, or for the collection of evidence in electronic form of a criminal offence (Article 25).”

For further information about the Cybercrime Convention see the following:

• Akdeniz, Y., An Advocacy Handbook for the Non Governmental Organisations: The Council of Europe’s Cyber-Crime Convention 2001 and the additional protocol on the criminalisation of acts of a racist or xenophobic nature committed through computer systems, Cyber-Rights & Cyber-Liberties, December 2003 (revised and updated in August 2007).

Guidelines for the cooperation between law enforcement agencies and Internet Service Providers against cybercrime were developed under the auspicies of the Council of Europe’s Cybercrime Project were adopted by the global Conference on Cooperation Against Cybercrime in April 2008 at the Council of Europe. The Guidelines have a non-binding nature and as its title suggest are intended to be guidelines to assist both law enforcement agencies and the Internet Service Providers in their co-operation in the fight against cybercrime. The Guidelines encourage a culture of co-operation rather than confrontation between the two parties. The document also encourages commitment for the protection of fundamental rights such as those enshrined in the European Convention on Human Rights.

These Guidelines are published by CoE but are not officially endorsed by CoE, it remains to be seen whether any ISP associations and law enforcement agencies endorse this at state level within the CoE region.

According to the US website Defend our Porn, Protect our Freedom, several obscenity charges were brought forward in the US during 2007. About 17 cases are covered in this article and is worth reading it if you are interested with the obscenity debate. The Defend our Porn, Protect our Freedom website was set up by John Stagliano (aka Buttman) of Evil Angel who is himself facing an obscenity charge. You can also view the Evil Angel and Stagliano indictment on XBiz.com’s website.

For further details of the Stagliano obscenity case see the following articles:

• John Stagliano, Evil Angel Charged With 7 Obscenity Violations
• Stagliano’s Lawyer Addresses Elements of Obscenity Case
• Vegas producer Stagliano charged with obscenity
• Feds hand eight-count obscenity charge to porn producer
• Feds Charge Porn Producer With Selling Adult Content to Adults
• John Stagliano to Be Arraigned April 21
• Arraignment Date Set For Stagliano;
• Evil Angel Obscenity Indictment Update
• The New War on Porn;
• Antiporn Groups: Feds Should Indict Softer Content
• Feds Target John Stagliano

My new book is just out

Internet Child Pornography and the Law: National and International Responses, Ashgate, published in April 2008 (ISBN-13 978-0-7546-2297-0).

This book sets out to provide a critical assessment of the problem of Internet child pornography and its governance through legal and non-legal means, including a comparative assessment of laws in England & Wales, the Unites States of America and Canada in recognition that governments have a compelling interest to protect children from sexual abuse and exploitation. The Internet raises novel and complex challenges to existing regulatory regimes. Efforts towards legal harmonization at the European Union, Council of Europe, and United Nations level are examined in this context and the utility of additional and alternative methods of regulation explored. This book argues that effective implementation, enforcement, and harmonization of laws could help to reduce the availability and dissemination of child pornography on the Internet substantially, this book argues. At the same time, panic-led policies must be avoided if the wider problems of child sexual abuse and commercial sexual exploitation are to be meaningfully addressed.

Contents: Introduction; Part 1 National Approaches: Legal approaches in England and Wales; Legal approaches in the United States of America; Legal approaches in Canada. Part 2 Supranational and International Approaches: European Union policy; Council of Europe policy; United Nations policy. Part 3 Internet Service Providers Liability and Self-Regulatory Approaches: Internet service providers’ liability; Self-regulatory and co-regulatory initiatives; Conclusion; Index; Bibliography; Index.

Reviews
‘In Internet Child Pornography and The Law, Yaman Akdeniz does an excellent job of applying responsible, thoughtful scholarship to a subject often surrounded by misinformation. This is an important book for anyone interested in understanding how law and legal thinking must be reshaped to respond to globalization and new technologies.’ Philip Jenkins, Pennsylvania State University, USA

‘Yaman Akdeniz’s book is an important and timely contribution to this area of research. It brings a coherent perspective to an otherwise fragmented, and at times contradictory, arena and provides a balanced perspective on what has become an increasingly emotive topic. This will be an invaluable source of information to all whose work relates to child pornography and will help inform both practitioners and policy makers.’ Ethel Quayle, University College Cork, Ireland