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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]


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 necessary 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.


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, (
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 (

7. Several actions such as:

  • Establishment of European Commission against Racism and Intolerance (ECRI),
    - Countryreports on the basis of a yearly update.
    - Documents adopted by European Conference against Racism, see

    • 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. (

    • 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 (

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,…
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 ( en
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 relevant 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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