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Council of Europe, Parliamentary Assembly

Assembly Spring Session – 23-27 April 2001

Report of debates of the Second Part of the 2001 Ordinary Session

24 April 2001, PM Session

6. Draft convention against cyber crime

THE PRESIDENT (Translation).- The second item of business this afternoon is the debate on the report on the draft convention against cyber crime presented by Mr Tallo on behalf of the Committee on Legal Affairs and Human Rights, Document 9031.

The list of speakers closed at 12 noon today. Seventeen names are on the list, and six amendments have been tabled.

We will have to interrupt the list of speakers at about 6.40 p.m. in order to leave sufficient time for replies on behalf of the Committee and their votes.

Are those arrangements agreed?…

They are agreed to.

I call Mr Tallo, the rapporteur, who has eight minutes.

Mr TALLO (Estonia).- It is an honour to stand before you and present our opinion of the draft convention on cyber crime. That convention is the first international instrument to regulate cyber space. As such, it is pioneering work. We should be proud that it is the Council of Europe that has taken the lead in this important matter.

However, as with all pioneering work, there has been much criticism. Much of it has been based on the way in which the convention was drawn up - it was a closed procedure and various stakeholders did not have access to it. To change that, the draft convention was published last year and the Committee of Ministers asked our Assembly to form an opinion on it, which is what we are doing.

The convention has three main objectives. The first is the harmonisation of substantive criminal law on cyber crime. The second is the approximation of procedural law necessary to investigate and prosecute such offences. The third is the setting up of a fast and effective regime of international co-operation in the field.

In preliminary discussions in the Committee on Legal Affairs and Human Rights, we established the need to conduct a public hearing, which took place in Paris on 6 March and greatly helped our committee to understand the issues raised in connection with the draft convention. The most important conclusion that we reached concerned the necessity for the convention. Such a convention is necessary and no one who has taken part in our extensive discussions has cast doubt on that.

Many of the worries that were voiced about the convention stemmed from the miscommunications that are a necessary but unfortunate by-product when introducing new regulations. There are also real concerns about the draft convention, which are threefold. The first is whether the individual’s privacy is endangered. Are sufficient guarantees to protect the individual written into the draft convention? The second is whether obligations on the industry are too burdensome. We cannot allow a convention that would make the Internet prohibitively expensive to use. The third is whether the convention is sufficiently flexible to take account of the penal provisions of different legislative regimes.

The amendments that we proposed, which are reflected in paragraph 10 of the draft opinion, address those concerns. One underlying principle which we followed when preparing the amendments was also to co-operate with, not to confront, the working group that drafted the convention. Our co-operation has been good and will continue. I have been asked to present our opinion to the working group and to defend our amendments at their final meeting at the beginning of May.

Six amendments have also been presented to the Assembly. We have debated them in our committee and some of them have even been debated by various political groups. We will return to the amendments when we vote, but I want to explain the fundamental principles that guided the opinion of the committee and I when assessing them.

Parts of the amendments have been discussed during the drafting of the convention. They created controversy then and they have created it here. In assessing them, we have to understand the nature of the Internet. Is the Internet a European phenomenon? It is definitely not. Can one have effective regulation of the Internet within the boundaries of nation states? Again, the answer is no, as the Internet knows no borders. That is the very reason for drafting the convention. Where is the Internet developed? Is it in Europe alone? Again, the answer is no. Whether we want it or not, the United States of America is the leading country in the development of the Internet. Therefore, it is important that the USA - as well as Canada and Japan among other non-member states - is also among the states to sign the convention. Only then will we have a truly effective international regulation on cyber crime, and that is our aim. That is also why the sensitivities of those countries should be taken into account, even though they are not member states. That is also why I would ask colleagues to support the decisions of the Committee on Legal Affairs and Human Rights on the proposed amendments.

Before I sit down, I must deal with the first amendment, which is to include the new Article 9 bis in the convention. That article would ban the spreading of racial hatred on the Internet. That topic is close to the hearts and minds of committee members and, I am sure, of all members of the Assembly. We are preparing a special report on the topic to be discussed in the Assembly’s fall session. We have already debated the issue in our committee. Our understanding is expressed in paragraph 13 of the draft opinion, which states that it is necessary that we draw up an additional protocol to the convention to define and criminalise the dissemination of racist propaganda and hate speech. However, the committee agreed that, to ensure speedy ratification of the convention, we could not include that in the body of the main text. Therefore, we rejected that proposed amendment.

A lot of work has been done. The staff of the committee - in particular, Mr Cupina - have been invaluable. The committee spent a lot of time debating this exciting but difficult issue and I thank all its members. Finally, I ask you to support the draft opinion that we have prepared. Thank you.

THE PRESIDENT.- Thank you, Mr Tallo. The next speaker is Mr Shaklein, who will speak on behalf of the Group of the Unified European Left.

Mr SHAKLEIN (Russian Federation) said that the report was well written. It was also topical as the Russian State Duma was currently considering some of the issues it raised. Russia had experienced a rapid growth in telecommunications, and the number of reported cyber crimes had increased dramatically over the past year.

Cyber crime was often international, which underlined the need for a harmonised approach. Fighting such crime would be more difficult if individual countries approached the matter in different ways.

The Russian State Duma was considering amendments to the Criminal Code. He supported the report and the amendments to the draft convention contained in it.

THE PRESIDENT.- Thank you, Mr Shaklein. The next speaker is Mr Jakič, who will speak on behalf of the Liberal, Democratic and Reformers’ Group.

Mr JAKIČ (Slovenia).- First, on behalf of the Liberal, Democratic and Reformers’ Group, I thank the Committee of Ministers for giving us the opportunity to participate in drawing up the first international agreement - the first legal framework - on combating cyber crime. At the same time, I express my satisfaction at the European Union’s decision to wait for the Council of Europe’s opinion on the matter. In so doing, it has made a convention on cyber crime a common pilot project.

Secondly, I thank the Chairman and Secretariat of the Committee on Legal Affairs and Human Rights for making it possible for parliamentarians to participate in the very good hearing on cyber crime in Paris at the beginning of March. Last, but not least, I congratulate Mr Tallo on his well-prepared report.

I should make it clear at the outset that the Liberals recognise what great tools cyber space and the Internet have become. It is so exciting to see people communicating and learning in ways that they never did before. The Internet has made the world smaller, allowing us to communicate better, and it has stimulated and facilitated commerce. Those are important benefits to the world community.

Our common goal should be to keep the computer network secure, safe and reliable, but we must do so in a way that respects collective and individual freedoms and rights. The protection of rights and freedoms on the Internet must be of international concern. It must be at the top of the global agenda; it must be an international priority.

There will always be some who use the tool of cyber space to hurt or harm others. Even in the Internet’s relatively short lifespan, we have seen a wide array of criminal conduct. The net has been used to commit traditional crimes against an ever-increasing pool of victims. Although the Internet provides an unparalleled opportunity for people to exercise their freedom of speech and freely to express ideas, it also provides a forum for ill-motivated persons to promote racism, xenophobia and hatred, to advocate violence and to teach others about acts of destruction and vandalism - or worse, to exploit children for pornography.

We must ensure that technology generally and the Internet specifically are not unjustifiably blamed for the evil perpetrated by certain criminals. We must not put at risk the progress that we have made, and will make, through the appropriate use of technology. In fact, we should use it as part of the solution to the problem.

Today, we have an incredible opportunity to define our rules and to give the public confidence that cyber space will not be used to invade their privacy, extort them, stalk them or undermine their quality of life. Instead, it must be used to give people different opportunities.

In the Liberal, Democratic and Reformers’ Group, we are aware that we must be careful when creating new legal standards so as not to give carte blanche to prevent freedom of speech in cyber space. That is why we must agree and make clear what is acceptable and what is not. We strongly support the recommendation immediately to draw up a protocol to the new convention, with the purpose of defining and criminalising certain offences such as the dissemination of racist propaganda, the illegal storage of offensive information, the use of the Internet for trafficking in humans, and so on.

The Liberal, Democratic and Reformers’ Group hopes that the Committee of Ministers will follow this Assembly’s opinion. If it disagrees, we hope that parliamentarians will again be given the chance to discuss the convention on cyber crime.

THE PRESIDENT (Translation).- The next speaker is Mr Gligoroski, who speaks on behalf of the Group of the European Peoples’ Party.

Mr GLIGOROSKI (“the former Yugoslav Republic of Macedonia”).- Approximately ten years ago, awareness of the new information society began to grow. Following that, many political initiatives were taken, such as conventions, resolutions and draft laws in order to put into a legal framework issues of security of information on computer networks, data protection, electronic trading and cyber crime. Soon, we will witness the introduction of even more concrete legal regulation of cyber space. Such issues began to arise as the Internet became the new medium for communication.

The Council of Europe was the first international organisation to raise the question of fundamental human rights, and drafted the European Convention on Human Rights, which is the cornerstone of our organisation. Now, fifty years after the adoption of that convention, we face a new information era and information society. It is now time to raise the question of updating the convention, including one new basic human right - covering the rights of people in cyber space. They include the right to Internet access, the right to a unique identity in cyber space and the right freely to receive information from it. I shall raise the matter in my political group, but I hope that it will be discussed in other political groups and even in other international organisations.

Many articles have been written about who will be rich and poor in future. The poor will be those who do not have the right information or access to it in cyber space. That is one reason why I suggest updating the European Convention on Human Rights to cover developments in technology and society.

I should now like to comment on Mr Ivar Tallo’s report. It covers the draft convention on cyber crime, proposing ways to improve the text and the introduction of several new articles. The rapporteur’s job was of a very high quality. Some of those in our political group support several of the proposed amendments, but we await the Assembly’s decision.

Finally, I should like to mention one possible addition that could be considered when drawing up the protocol proposed in paragraph 13 of the draft opinion - “Broadening the scope of the convention to include new forms of offence”. Every Internet service provider who retains e-mail messages on his server should do so in encrypted form. The reasons why are very clear. There is the possibility that information in the messages could be abused by an employee or someone else who intrudes on the system.

The Group of the European People’s Party supports the report.

THE PRESIDENT (translation).- The next speaker is Mr Valleix.

Mr VALLEIX (France) said that it was fitting that the first legal instrument on the convention had provided for the incrimination of child pornographers. Countries which were not members of the Council of Europe, such as the USA, also supported the initiative.

Aesop’s comment that language could be both the worst and the best thing was relevant to the Internet, which contained both racist and anti-racist material. The Internet was used by various sects to promote their own views. Not all opinion was worthy of equal status. It was up to the Council of Europe to adopt an appropriate philosophy on this issue. He hoped that a suitable convention would be adopted.

THE PRESIDENT (Translation).- Thank you, Mr Valleix. The next speaker is Mr Jurgens.

Mr JURGENS (Netherlands).- Like Mr Tallo, I compliment the Council of Europe on being the first to try to tackle this difficult problem of international cyber crime. It has acted quickly, which has created problems as the convention was only published in October last year, and many people who would have liked to discuss it in a public debate have not yet had the chance to do so. Some people in the Assembly feel pushed, because we must decide matters now. However, it is clear that something has to happen quickly, because this sector is growing very fast and it would be bad if we did not try to catch up with developments through the convention. People and governments are calling for some form of regulation, and we have such a possibility before us.

The Council of Europe has acted commendably fast, and the convention goes a long way towards providing international co-operation. Its articles contain important directives on the minimal content of national laws on cyber crime. It also gives minimal direction to member states to assist one another in criminal investigations and procedures. If all forty-three member states signed the convention, that would be a major step forward in international co-operation in Europe.

Mr Tallo, as rapporteur, only gets a short time to answer the debate, but I should like him to say something about Article 26(5) on the principle of dual criminality, which is deemed to be fulfilled if a cyber crime is a criminal offence in any category, even if in one member state it is a light offence and in another a very serious crime. In that case, there still has to be judicial co-operation. I am sure that that will create problems now and then, but it shows how adventurous the convention is.

I should like to say a few words on the first amendment. I use that expression in two ways. The first amendment of the American Constitution is about free speech, and for our American friends it is one of the bulwarks of their constitutional civilisation. For them, the banning of any type of free speech is difficult to accept. We in Europe have had a different history, and we have had terrible experiences of speech arousing hatred at certain times in the last century. In most European countries, laws have been accepted to ban speech that arouses hatred or racist feeling.

Amendment No. 1 is impeccable and its content is excellent. As Mr Tallo said, we want an extra protocol. If free speech is balanced against non-discrimination, it is not always easy to make a decision about which of the two basic rights should be preferred. The Americans prefer free speech to non-discrimination, but we believe that non-discrimination is more important. It is not a matter of us against the Americans: it is more a problem of balancing basic human rights. The wise solution that has been found by the rapporteur is to create a special protocol so as not to prevent the Americans from accepting the convention as it stands, which is necessary to make it work. I have sympathy with the content of Amendment No. 1, but I think it would be wise to follow the rapporteur’s advice and not to include it now, but perhaps in the autumn when we speak about this matter again.

THE PRESIDENT (Translation).- Thank you, Mr Jurgens. I call Mr Nagy.

MR NAGY (Hungary).- The constant expansion and development of the Internet provide for the free movement of information, but it can also be abused. The Internet has no centre, so everyone can communicate with each another as equal partners. There is a lack of control of the system, and it is able to be exploited. The drafting of the convention on cyber crime and its bringing into force are hot issues. Such international initiatives and collaboration enable us to begin the fight against cyber crime, which is spreading widely.

I congratulate the rapporteur on his excellent work. I should like to draw the Assembly’s attention to two sections that I believe should be revised, and to two important issues that could help to fight effectively against cyber crime.

Article 9 of the draft convention on offences related to child pornography defines exactly the acts that constitute the legal facts of a crime. Those are as follows: producing, offering, distributing and transmitting, procuring and possessing. However, the definition of possessing is that the service provider is criminally liable only when it has actual knowledge of at least one of the legal facts of a crime. The problem is that it will never be provable.

In my opinion, either the formulation of the draft convention should be specified, or the responsibility of the provider should be increased to make the provider responsible for all the supplied contents. On the basis of that responsibility, the defence and the legality of the services would be proven.

Article 23 of the draft convention on application of the law tries to answer the question of which court has the right to establish jurisdiction. As the draft convention says, it is “the court, in the territory of which the offence is committed”. In the case of an ordinary statute, that definition would be sufficient, but the scene of the crime cannot always be so easily defined. A slick and intelligent teenager can create a situation in which the scene of the crime appears to be a computer on another continent. Moreover, the perpetrator can commit an offence through a chain of systems and computers so that it becomes impossible to discover the perpetrator or the scene of the crime.

I wish to emphasis two serious problems. Paragraph 31 of the report draws attention to the fact that national governments and the private sector must co-operate for the sake of their safety and defence. That is very important for industrial companies that are particularly vulnerable to cyber crime because of the technological information that they use. They can be safe only by joining forces and co-operating.

The control of websites with illegal contents is still very inefficient because such websites cannot be filtered out in sufficient number. People with such websites on the Internet are always one step ahead of the police and by the time the police get information about the website’s existence, it has already been visited by innumerable people. It is important to set up adequate police units for this purpose. In Hungary, the Deputy Commissioner of Police announced last week that a specialised unit would soon be operating, equipped with all the technical equipment and finance that it needs.

A survey among fifty-two countries has shown that only ten countries have already tried to protect themselves against the various forms of cyber crime. By putting the draft convention into force and strengthening international co-operation, we can guard much more effectively against the negative aspects of technological development.

THE PRESIDENT (Translation).- Thank you, Mr Nagy. The next speaker is Mr About.

Mr ABOUT (France) welcomed the draft convention, in particular the clause outlawing paedophile material. Other types of material however, such as Holocaust denial propaganda, should also be made illegal. It was disappointing that certain offences had been dropped from the draft convention after pressure from countries, including the United States. The result was inconsistency, since under the revised text it would be allowable to incite racism but not paedophilia. He reminded the Assembly that the European Convention on Human Rights recognised that certain protective measures were necessary in a democratic society. He also emphasised the provisions regarding non-discrimination. In the light of those considerations, he had tabled an amendment to make the dissemination of racist and xenophobic material an offence within the convention.

It had been suggested that such crimes could be specified in a future protocol, but signatories to the original convention could avoid signing up to such a protocol. The Assembly should not depart from the core values of the Council of Europe. Racist material should therefore be covered by the convention itself.

THE PRESIDENT (Translation).- Thank you, Mr About. The next speaker is Mr Telek.

Mr TELEK (Turkey).- I thank Mr Tallo for his excellent report, which makes an important contribution to the debate on the draft Convention on cyber crime.

The draft convention is an extremely important achievement of the Council of Europe. It not only is the first legally binding international instrument, but deals with a highly technical issue which has complex ethical and legal ramifications.

The draft convention has been elaborated by states that possess the necessary technology to combat cyber crime. That fact will ensure the successful implementation of the draft convention in the future and encourage other states to become a party to it. States that do not belong to the Council of Europe showed an interest in the draft convention during its elaboration, and some of them actively participated in the process. That is another reason for its future success.

I share the opinion of the rapporteur that the text of the draft convention must be flexible enough to allow for the changeable nature of the different forms of cyber crime and the speed with which new technologies are developing.

In our opinion, there are shortcomings in the draft convention, but they could be remedied by means of an additional protocol. The list of crimes covered by the draft convention must include the dissemination of racist and xenophobic propaganda. On many occasions our Organisation has pointed out the threat posed to our democratic societies by racist and xenophobic propaganda.

The European Convention on Human Rights clearly defines in its case-law the scope and limits of freedom of expression. To conform with that case-law, taking adequate measures to combat such propaganda, including in cyber space, is of the utmost importance. For that reason, I fully support the rapporteur’s proposal immediately to draw up an additional protocol to include the dissemination of racist and xenophobic propaganda in the list of crimes covered. I can subscribe to the opinion expressed in the report with regard to various aspects of the draft convention.

THE PRESIDENT.- (Translation) Thank you. I call Mr Marty.

Mr MARTY (Switzerland) welcomed the fact that some agreement was being reached, but there were some concerns. How could the Council of Europe, representing a continent that had suffered such terrible events in its history, not refer in its convention to racial hatred? He accepted that the United States of America, Canada and Australia had to be involved, but the Council of Europe was simply being asked for its opinion and such a serious offence as incitement to racial hatred should be mentioned. As for the argument that that would infringe an individual’s right to freedom of expression, that was similar to arguing that the right to freedom of commerce meant the right to supply arms to anyone and everyone.

THE PRESIDENT (Translation).- Thank you. I call Mr Dreyfus-Schmidt.

Mr DREYFUS-SCHMIDT (France) thanked the rapporteur for his report. He agreed with Mr Marty that the Council of Europe was being asked simply for its opinion. Would the Council of Europe refuse to give an opinion on the abolition of the death penalty even though it knew that some countries, for example the United States of America and China, would not sign a convention outlawing such a penalty?

The committee had deplored the failure of the Committee of Experts to include a reference to racism. Although Europe had much to be grateful to the United States for, and he was not anti-American, he believed that the USA was trying to extend its own imperialism. The Committee of Experts had shown a lack of courage in the matter.

An extra protocol had been suggested, although individual states in the USA might not be bound by it. The committee had voted by only thirteen votes to eleven to agree to the report as proposed by the rapporteur, and there should therefore be a vote on the proposal.

THE PRESIDENT (Translation).- Thank you, Mr Dreyfus-Schmidt. The next speaker is Mr Cilevičs.

Mr CILEVIČS (Latvia).- I congratulate Mr Tallo on his diligent, constructive and creative approach to such a complicated issue.

It is very frustrating that the draft convention says nothing about combating racist propaganda, xenophobia and hate speech on the Internet. I share the concerns that have been expressed by our French colleagues on that issue. I believe that we have to find a proper forum to operate appropriate provisions to deal with the matter which are acceptable both to member states and to non-member states of the Council of Europe. The European Court of Human Rights tends to interpret the freedom of expression in an overly broad manner, and that issue should be addressed urgently. Nevertheless, I believe that the rapporteur’s proposals are the most appropriate way of addressing the issue. We must be both dedicated and wise in taking action on the matter.

I should like to draw the Assembly’s attention to some important factors that have not been properly dealt with by the drafters of the convention, the first of which is the uneven development of information technologies between different countries. There is an enormous disparity even among Council of Europe member states in the way in which such technologies develop. We have to ensure that the limitations that will be established in the forthcoming convention do not impede the development of Internet technologies in countries that are in transition or deprive them of the opportunity to catch up technologically.

Copyright is the second factor. Eventually, if we continue with the current copyright rules, new software may not be available in countries with lower income levels. At the hearing mentioned by the rapporteur, representatives of Unesco stated that we should address that issue, and I believe that it should be taken into account.

The third factor is the responsibility of Internet service providers, which should be liable for the content that they make available. It is no secret that the governments of many countries – most of which are fortunately not Council of Europe members –try their very best to keep the Internet under tight control. It would be rather unfortunate if the convention provided them with a pretext to increase their efforts in pressuring Internet service providers.

The fourth factor is Internet junk mail or “spam”. We should remember that, in many countries in transition, users have to pay even for incoming traffic and that such a financial burden falls disproportionately heavily on people in those countries. Whereas such charges would only be an annoyance for people in developed countries, they are a major difficulty for people in countries in transition. I am aware of some people and non-governmental organisations that have had to stop using the Internet because they could not pay for the junk mail that they were receiving.

There are no clear answers to those questions. This is the first convention to address those issues, and I am sure that it will be improved and amended further. That evolution is necessary to ensure that the Council of Europe can properly meet the challenges that will inevitably arise with further developments of high-technologies. The report makes an important contribution to that evolutionary process. Again, I congratulate Mr Tallo on the report and I support his approach to the matter.

THE PRESIDENT (Translation).- Thank you, Mr Cilevičs.

The next speaker is Mr Monteiro, who speaks on behalf of the Socialist Group.

Mr MONTEIRO (Portugal) congratulated the rapporteur on the high quality of his report and thanked him for organising the interesting hearing in Paris. He was in favour of the general thrust of the report and the adoption of the convention. However, he regretted the fact that the text of the report was purely repressive in nature. The Internet could be a positive tool for communication and for the transfer of knowledge and that should acknowledged.

Care had to be taken to ensure that the convention did not violate personal privacy. If the Council accepted the American reasoning which put freedom of information above personal privacy, the convention would violate human rights.

THE PRESIDENT (Translation).- Thank you, Mr Monteiro. I call Mrs Pozza Tasca to speak.

Mrs POZZA TASCA (Italy) commented that criminal activity on a vast scale had been made much easier by the Internet. The Internet could be used to spread information about explosives and drugs, and pseudonyms could be used in order to slander. The pirating of programmes, spreading of codes and viruses, and the interception of information were widespread. As the majority of users of the Internet were under age, it was they who suffered most from this activity.

In the year 2000 the number of users of the Internet in western Europe had doubled to 81 million. The protection of young people when they surfed the Net should be a priority. The lack of legislation hampered progress in that area and the lack of regulation had led to a dramatic increase in child pornography. Young children had to be protected from pictures which went against human dignity.

The Italian and Russian police had conducted research which showed that there were widespread criminal rings who kidnapped children to photograph them for pornographic pictures and perhaps even kill them. With that in mind, the recommendations in paragraphs 38 to 40 of the report were particularly welcome.

Her country had introduced specific offences to reduce the production and spread of pornography on the Internet. New instruments were needed to reduce paedophile activity. The convention contained important steps to achieve that.

THE PRESIDENT (Translation).- Thank you, Mrs Pozza Tasca. I now call Mr Cherribi.

Mr CHERRIBI (Netherlands) warmly congratulated the rapporteur on an excellent report. The convention had two advantages: it used North American expertise; and it could be adopted worldwide. Concessions often had to be made when dealing with the world outside Europe. International jurisdiction needed to be clarified. Some aspects of the convention were not perfect, but it contained as much as was achievable.

There had been a discussion about the definition of data and data traffic in the Netherlands. New technology meant that more detail could be obtained than before. New data traffic went beyond traditional telephone logs and included much more information, such as the location of an individual. Different categories of data needed different levels of protection. Content data needed to be better protected than traffic data.

Spamming created a problem of anonymity and accountability, and required further work. It was not always a problem. For instance, if Chechens were under threat from Russia, they would want to remain anonymous, and in their case spamming could be justified. Personal data presented a problem. The convention implied that members were to refuse requests for personal data only when political crimes or threats to security were involved. That needed to be examined when the issue was followed up.

THE PRESIDENT (Translation).- That brings us to the end of the list of speakers.

I call Mr Tallo, the rapporteur, to reply. You have four minutes.

Mr TALLO (Estonia).- Thank you, colleagues. The comments of Mr Jurgens need a special reply and I will deal with them afterwards in the lobby. As for the questions on the preservation of data, in our opinion we suggest that there should be a limit of between two months and one year.

Dear colleagues in the French delegation, I will never be able to speak as well as you do. It is excellent to hear how you express yourselves. However, I wonder whether you have taken into account the fact that, as you suggest, the amendments would ruin the balance that has been reached between different parties who are interested in the convention. The decision is very serious: either to have a convention or not. A convention regulating the use of the Internet in Council of Europe member states only would not even be tantamount to a glass that is half empty. I do not want this issue to go the way that Minitel went. I have sympathy for the opinion expressed, and we have tried to find a more productive way forward.

I thought that debate on the cyber crime convention would concern freedom and regulation, which are the issues that arise outside this Chamber. A great thinker of the 20th century, Hannah Ahrendt, drew a clear line, as did many before her, between the freedoms that we cherish and anti-social arbitrariness. That is the big picture of the future of the Internet. A convention on cyber crime would not handcuff the Internet, but it would make life a little harder for villains. The wild west of the Internet is coming to an end. Fittingly, that is coinciding with the end of the gold rush in high-tech stock.

When we take a closer look at the proposed convention and the explanatory memorandum, we see that most regulation is left to national legislation. On the one hand, that is necessary, because we must deal with a variety of systems. On the other hand, it makes drafting the convention complicated. Unfortunately, it is not in the power of the Council of Europe to draw up the Ten Commandments of life in cyber space. Today’s legislation is not initiated in a vacuum. The main point is to begin with regulation. The necessary amendments will become clearer as work proceeds. The libertarian or anarchist dream of the Internet is dead. It was intellectually appealing but not truly practicable, as we have seen. Today we are forging the history of the Internet.

I thank all who have participated in the debate, especially the Chairman of the Committee on Legal Affairs and Human Rights, Mr Jansson, for his support in preparing the report.

THE PRESIDENT (Translation).- Thank you, Mr Tallo. I call the Chairman of the Committee on Legal Affairs and Human Rights to respond to the debate.

Mr JANSSON (Finland).- I must say on behalf of the committee that this has been a high-quality debate. It is a pity that it has taken place at this time of day. I thank warmly all those who participated in it.

The committee proposes twenty-three amendments to the draft convention and has made four proposals - only one of which we find in paragraph 13 of the draft opinion. There is an old political maxim that one should not make what is good the enemy of what is best. I am utterly convinced that we all share the view that the hatred, racism and xenophobia that are already punishable in society should be combated in the Internet environment and in other forms of electronic communication. We are discussing more a question of form than of substance: how to achieve that goal.

I share the view of our rapporteur, whom I warmly thank for his efficient work. By making what is good the enemy of what is best, or vice versa, we may risk ruining the whole project. We cannot do so because the Council of Europe, the European Union and, indeed, the whole world has invested so much in the matter. I therefore ask colleagues to support the committee. We shall return to the constructive French proposals.

THE PRESIDENT (Translation).- The debate is closed.

The Committee on Legal Affairs and Human Rights has presented a draft opinion to which six amendments have been tabled. They will be taken in the following order: 1, 2, 4, 5, 6 and 3, as revised. Amendment Nos. 1, 2, 5 have been revised in French only.

I remind you that speeches on amendments are limited to one minute.

We come to Amendment No. 1, tabled by Mr About, Mr Clerfayt, Mr Dreyfus‑Schmidt, Mr Schreiner, Mr Hermann, Mr Valleix, Mr Michel, Mr Lengagne, Mr Mitterrand, Mrs Durrieu, Mr Pourtaud and Mr Dumont, which is in the draft opinion after paragraph 10.vi, insert a new paragraph worded as follows:

“after Article 9, add a further article worded as follows:

“New Article 9 bis

RACIAL DISCRIMINATION

Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences in accordance with its domestic law the following acts when wilfully committed:

a. producing, offering or making available, distributing or transmitting, procuring or providing, through a computer system, messages of any kind expressing ideas founded on racial superiority or racial hatred, inciting racial discrimination, encouraging racist acts or inciting acts of violence against any race or any group of persons of a different colour or a different ethnic origin;

b. producing, offering or making available, distributing or transmitting, procuring or providing, through a computer system, messages of any kind which negate or condone with a racist or xenophobic intent the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945.”

I call Mr Dreyfus-Schmidt to support Amendment No. 1.

Mr DREYFUS-SCHMIDT (France) said that the inclusion of racism as an offence under the draft convention would not in fact impede implementation of the convention itself.

THE PRESIDENT (Translation).- Does anyone wish to speak against the amendment?

I call Mr Guardans.

Mr GUARDANS (Spain) said the issue was whether the Assembly wanted an effective instrument or merely an interesting document. Nothing in the draft convention would prevent the fight against racism from continuing.

THE PRESIDENT (Translation).- What is the opinion of the committee?

Mr JANSSON (Finland).- As Mr Dreyfus-Schmidt said, the committee is against the amendment.

THE PRESIDENT.- The voting is open.

Amendment No. 1 is rejected.

We come to Amendment No. 2, tabled by Mr About, Mr Clerfayt, Mr Dreyfus-Schmidt, Mr Schreiner, Mr Hermann, Mr Valleix, Mr Michel, Mr Lengagne, Mr Mitterrand, Mrs Durrieu, Mrs Pourtaud and Mrs Dumont, which is, after paragraph 10.vi of the draft opinion, insert the following sub-paragraph:

“in Article 10(1) and 10(2), delete the words ‘on a commercial scale’”.

I call Mr Drefus-Schmidt to support Amendment No. 2.

Mr DREYFUS-SCHMIDT (France) said that the draft convention concerned copyright on a commercial scale only and did not cover the infringement of copyright by individuals. The amendment would remove that inconsistency.

THE PRESIDENT (Translation).- Does anyone wish to speak against the amendment?

I call Mr Tallo to speak against the amendment.

Mr TALLO (Estonia).- Whereas my heart was in the previous amendment, I am against this amendment because it will lead to the over-criminalisation of copyright questions and to unclear criminal standards.

THE PRESIDENT (Translation).- What is the opinion of the committee?

Mr JANSSON (Finland).- We are against the amendment.

THE PRESIDENT (Translation).- The voting is open.

Amendment No. 2 is rejected.

We come to Amendment No. 4, tabled by Mr Cherribi, Mr Van’t Riet, Mr Zwerver, Mr Dees and Mr Valk, which is in the draft opinion, at the end of paragraph 10.vii, insert:

“and insert ‘an effective remedy’”

I call Mr Cherribi to support Amendment No. 4.

MR CHERRIBI (Netherlands) said that he had tabled the amendment to ensure effective harmonisation.

THE PRESIDENT (Translation).- Does anyone wish to speak against the amendment?

Mr TALLO (Estonia).- The amendment would amend paragraph 10.vii and would return to the original text, which is why we oppose it.

THE PRESIDENT (Translation).- What is the opinion of the committee?

Mr JANSSON (Finland).- The committee is against the amendment.

THE PRESIDENT (Translation).- The voting is open.

Amendment No. 4 is rejected.

We come to Amendment No. 5, tabled by Mr Cherribi, Mr Van’t Riet, Mr Zwerver, Mr Dees and Mr Valk, which is in the draft opinion, replace paragraph 10.xv with new paragraph as follows:

“Replace Article 15 with the following text: ‘Each Party shall adopt, for the implementation and application of the powers and procedures referred to in this Section, legislative and other measures establishing conditions and safeguards that will adequately protect human rights, in particular as provided in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols and the International Covenant on Civil and Political Rights. Such measures shall require independent and effective controls, based in each specific instance on findings of fact concerning the crime and specifying the person whose privacy is to be interfered with, with due regard for the proportionality of the specific powers and procedures to the nature and circumstances of the offence’.”

I call Mr. Cherribi to support Amendment No. 5.

MR CHERRIBI (Netherlands) said that the amendment was designed to guarantee the protection of private information.

THE PRESIDENT (Translation).- Does anyone wish to speak against the oral sub-amendment?…

That is not the case.

I call Mr Jansson to support the oral sub-amendment.

Mr JANSSON (Finland).- The sub-amendment is to the second sentence, which would read that the implementation of such measures “shall require independent and effective control”. The committee is of the opinion that it should say “control” and not “controls”. The committee is unanimously in favour of the amendment as amended by our sub-amendment.

What is the opinion of the mover of the amendment on the sub-amendment?

Mr CHERRIBI (Netherlands) (Translation).- I am in favour of it.

THE PRESIDENT (Translation).- The voting on the oral sub-amendment is open.

The oral sub-amendment is adopted.

Does anyone wish to speak against the amendment, as amended?

I call Mr Dreyfus-Schmidt.

Mr DREYFUS-SCHMIDT (France) believed the amendment as amended contradicted an amendment rejected earlier. Nevertheless, he was happy for the matter to be voted on.

THE PRESIDENT (Translation).- What is the opinion of the committee?

Mr JANSSON (Finland).- The committee is in favour.

THE PRESIDENT (Translation).- The voting is open.

Amendment No. 5, as amended, is adopted.

We come to Amendment No. 6, tabled by Mr Cherribi, Mr Van’t Riet, Mr Zwerver, Mr Dees and Mr Valk, which is in the draft opinion, after paragraph 10.xviii, insert a new sub-paragraph as follows:

“In Article 19(3), replace the words ‘in cases where an alleged offender is present in its territory and it does not extradite him to another party, solely on the basis of his nationality, after a request for extradition’ with:

‘Those measures shall be implemented so as to minimize the interference with the operations of the owner or operator of the computer system and with any legitimate uses of the data and may include the power:’.”

I call Mr Cherribi to support Amendment No. 6.

Mr CHERRIBI (Netherlands) said that Article 19(3) of the convention was worded too broadly and could lead to Internet service providers being closed down without the authority of a judge. Rewording was necessary, but as the committee had had only a short time to discuss the point, he was be willing to withdraw the amendment if the chairman of the committee requested it.

THE PRESIDENT (Translation).- Does anyone wish to speak against the amendment?…

That is not the case.

What is the opinion of the committee on the amendment?

Mr JANSSON (Finland).- The committee is against the amendment. My constructive proposal is that it should be withdrawn.

Mr CHERRIBI (Netherlands)(Translation).- I agree.

Amendment No. 6 is withdrawn.

THE PRESIDENT.- We come to Amendment No. 3, revised, tabled by Mr About, Mr Clerfayt, Mr Dreyfus-Schmidt, Mr Schreiner, Mr Hermann, Mr Valleix, Mr Michel, Mr Lengagne, Mr Mitterrand, Mrs Durrieu, Mrs Pourtaud and Mrs Dumont, which is after paragraph 10.xxi of the draft opinion, insert a new sub-paragraph worded:

“in Article 37, delete paragraph 3”.

I call Mr Dreyfus-Schmidt to support Amendment No. 3, revised.

Mr DREYFUS-SCHMIDT (France) said that the text contained yet another compliment to the United States of America. The federal clause would allow America to claim that responsibility for abiding by the convention lay with each individual federal state which could not be controlled centrally. Granting an exception to federal states would be a terrible precedent and he called on Assembly members to accept the amendment.

THE PRESIDENT (Translation).- Does anyone wish to speak against the amendment?

I call Mr Guardans.

Mr GUARDANS (Spain) said that it was in the interests of all if other federal states such as Australia signed the convention. Including the federal clause did not go against international law, nor did it affect the laws of Council of Europe member states. The clause had been requested by the USA, and the committee wished the USA to be a signatory to the convention.

THE PRESIDENT (Translation).- What is the opinion of the committee on the amendment?

Mr JANSSON (Finland).- On the grounds of what we have just heard, the committee is against the amendment.

THE PRESIDENT (Translation).- The voting is open.

Amendment No. 3, revised, is rejected.

We shall now proceed to vote on the whole of the draft opinion contained in Document 9031, as amended. I remind the Assembly that a two-thirds majority is required.

The voting is open.

The draft opinion contained in Document 9031, as amended, is adopted.

I call Mrs Kestelijn-Sierens to explain a vote.

Mrs KESTELIJN-SIERENS (Belgium) said that she had mistakenly voted against the first amendment and had in fact wanted to vote for it.

THE PRESIDENT noted Mrs Kestelijn-Sierens’s mistake. He pointed out that if Mrs Kestelijn-Sierens had voted in favour, the result would have been a tie, and under the rules of procedure the amendment would have been rejected. None the less, Mrs Kestelijn-Sierens’s point would be put on the record.

7. Date, time and orders of the day of the next sitting

THE PRESIDENT (Translation).- Members will be aware that tomorrow morning we will be discussing the reports of four committees on matters relating to Kosovo and the neighbouring regions.

More than forty members have asked to speak in the debate and more than thirty amendments have been tabled to the first of the four reports. In view of this, the President proposes that speaking time for each member in the general debate should be reduced from five minutes to four minutes.

Is this agreed?…

It is agreed to.

I propose that the Assembly hold its next public sitting tomorrow at 10 a.m. with the orders of the day that were approved on Monday.

Is that agreed?…

The sitting is closed.

(The sitting was closed at 7.05 p.m.)

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