A_Global_Protocol_on_Cybersecurity_and_Cybercrime.pdf

For the additional model law alternatives

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For the additional Model Law alternatives, commentaries may be found in the respective countries. C OMMENTARIES FOR THE A RTICLES IN P ART ONE ARE AS FOLLOWS : Article 1: Measures in Substantive Criminal Law Commentary: 1) The Council of Europe Convention on Cybercrime The 2001 Council of Europe Convention on Cybercrime is a historic milestone in the combat against cyber crime, and entered into force on July 1, 2004. The total number of signatures not followed by ratifications are 20, and 26 States have ratified the Con- vention. 9 By ratifying or acceding to the Convention, the States agree to ensure that their do- mestic laws criminalize the conducts described in the substantive criminal law section. Other States should evaluate the advisability of implementing the standards and princi- ples of the Convention and use the Convention as a guideline, or as a reference for devel- oping their internal legislation In order to establish criminal offences for the protection of information and com- munication in Cyberspace, provisions must be enacted with as much clarity and specific- ity as possible, and not rely on vague interpretations in the existing laws. When cybercrime laws are adopted, perpetrators will be convicted for their explicit acts and not by existing provisions stretched in the interpretations, or by provisions enacted for other purposes covering only incidental or peripheral acts. 9 See (October 2009)
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44 One of the most important purposes in criminal legislation is the prevention of criminal offenses. A potential perpetrator must also in cyberspace have a clear warning with adequate foreseeability that certain offences are not tolerated. And when criminal offences occur, perpetrators must be convicted for the crime explicitly done, satisfactorily efficient in order to deter him or her, and others from such crime. These basic principles are also valid for cybercrimes. 2) Article 2-9 Article 2-9 in the Convention covers illegal access, illegal interception, data interfer- ence, system interference, misuse of devices, computer-related forgery, computer- related fraud and offences related to child pornography. Many countries, especially in Asia, do not have traditions on copyright legislations such as covered by Article 10 on offences related to infringements of copyright and related rights. Thus it not naturally to include this principle in a global Protocol for recommendations of measures to be implemented. With regard to Article 9 on offences related to child pornography, many interna- tional organizations 10 are engaged in the fight against online child pornography. 11 It in- cludes the 1989 UN Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography 12 ; the 2003 EU Coun- cil Framework Decision on combating the sexual exploitation of children and child por- nography 13 ; the ITU COP Initiative 14 and the 2007 Council of Europe Convention on the protection of children against sexual exploitation and sexual abuse.
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