These definitions (1/a -
1/e) still need to be revised by the Drafting Group.
The explanatory report should specify that "computer system"
refers to the function of data processing and therefore may include any
system that is based on such a function, e.g. telecom systems, and that the
"inter-connection" referred to in the definition encompasses radio and
The interpretation of "intent" should be left to domestic laws,
but it should not, where possible, exclude "dolus eventualis".
The expression 'without right' appears in all of the articles of
this section and derives its meaning from the context in which it is used.
Thus, without restricting how Parties may implement the concept in their
national law, it may refer to conduct undertaken without authority (whether
legislative, executive, administrative, judicial, contractual or consensual)
or conduct that is otherwise not covered by established legal defences,
excuses, justifications or relevant principles under national law.
The terms "non-public" relate to the transmission
(communication) process and not necessarily to the data transmitted.
In some countries, interception may be closely related to the
offence of unauthorised access to a computer system. In order to ensure
consistency of the prohibition and application of the law, countries that
require dishonest intent with respect to the offence in article 2 may also
require a similar qualifier to attach criminal liability to conduct defined
under Artice 3.
The Explanatory Report should specify that 'Alteration' also
includes tampering with traffic data (spoofing).
The Explanatory Report should clarify that "suppression of
data" has two commonly agreed meanings: 1) delete data so that it does
no longer exist physically; 2) "render inaccessible", i.e. prevent
someone from gaining access to it while maintaining it.
Several comments from industry indicated that the so-called
"cracking-devices", to which Article 6 applies, may also be used
legitimately to test system security. The explanatory report shall clarify
that the conduct defined by Article 6, when undertaken with such legitimate
purposes, would be considered to be "with right". Furthermore, the
burden of proof of the unlawfulness of conduct under Article 6 would lie
with the prosecution. In this context, reference should be made to the
footnote under Article 2 concerning the meaning of "without
The Explanatory Report shall specify that the term
"authentic" refers to the issuer of the data, regardless whether
the content of the data is true or not.
The Explanatory Report should clarify that the terms
"without right" do not exclude legal defenses, excuses or similar
relevant principles that relieve a person of responsibility under specific
circumstances. Therefore, conduct undertaken with artistic, medical or
similar scientific purposes would not be "without right".
The Explanatory Report should specify that 'offering' also
includes giving information about hyperlinks to child-pornography sites and
that "making available" is, for example, posting child pornography
on the internet or making it available through file sharing
The Explanatory Report should clarify that this provision by no
means is intended to restrict the criminalisation of the distribution, etc,
of child pornography to cases making use of a computer system, but the
Convention establishes this only as a minimum standard and States are free
to go beyond it.
The Explanatory Report should clarify that that the term
"pornographic material" is governed by national standards
pertaining to the classification of materials as obscene, inconsistent with
public morals or similarly corrupt.
The Explanatory Report should specify that a "sexually
explicit conduct" covers at least actual or simulated: a) sexual
intercourse, including genital-genital, oral-genital, anal-genital or oral-
anal, between minors, or between an adult and a minor, of the same or
opposite sex; b) bestiality; c) masturbation; d) sadistic or masochistic
abuse; or e) lascivious exhibition of the genitals or the pubic area of a
Some delegations preferred to use the word "willfully"
instead of "intentionally" in both paragraphs 1 and 2, on the
ground that "willfully" is used in article 61 of the TRIPS
agreement (governing obligation to criminalise) and in some legal systems
connotes a specific intent to infringe a copyright on a commercial scale.
There are still discussions concerning criteria that would allow
Parties to exclude minor offences from the scope of this provision.
The Explanatory Report shall clarify that this provision refers
to persons having an actual (physical) control over the computer (system).
This would normally include the owner of the premises where the computer is
located or the owner/user of the computer itself.
A Party may, by implementating this power in domestic law,
require additional criteria and/or conditions, such as "in the manner
specified in the order".
Paragraph 1/c is still under discussion. It would allow to
oblige private persons to process data for law enforcement purposes, e.g.
analyse them according to certain criteria relevant for law enforcement or
apply to them "data-matching" techniques for these purposes. It
may look like being a far-reaching, intrusive power, but it could offer more
guarantees for the protection of private life than it seems. If a private
person applies "data-matching", only the result will be available
for the law enforcement authorities. Without such an obligation, it might be
necessary that these authorities obtain vast amounts of data or complete
files - e.g. through the power provided for under article 15 - in order to
do "data-matching" themselves.
The Explanatory Memorandum shall clarify that there is a
communication on a country's territory if one of the communicating parties
(human beings or computers) is located there.
The terms "conditions and safeguards" refer to
procedural modalities of the powers defined in Articles 14 through 18bis.
The Explanatory Report shall provide some examples of the kinds of
conditions and safeguards, which Parties may wish to require.
Further clarification is required with regard to the inclusion
of satellites, in particular as to whether this provision would require a
State that has responsibility for a satellite (or shares such responsibility
with other States) to establish jurisdiction over an offence where the only
nexus with that State is that data related to the offence has been
transmitted through that satellite. Other international instruments should
be examined to determine how they affect the jurisdiction of States with
respect to satellites. The way of registration for satellites and the
reference to the State entering such registration should also be
Designation of an authority shall not exclude the possibility of
using the diplomatic channel. This provision has been limited to situations
in which there is no extradition treaty in force between the Parties
concerned. Where a bilateral or multilateral extradition treaty is in force
between the Parties concerned (such as the 1957 European Convention on
Extradition), the Parties will know to whom extradition and provisional
arrest requests are to be directed without the necessity of a burdensome
It is still under discussion whether the condition of dual criminality should be
required for certain procedural measures (expedited preservation of stored
computer data - Article 24 - and expedited disclosure of preserved traffic
data - Article 25) as a matter of principle.
The explanatory text should specify that the mere fact that the
requested Party's legal system knows no such procedure is not a sufficient
ground to refuse to apply the procedure requested by the requesting
Further consideration is necessary on this matter, given that
certain delegations expressed reservations as to the possibility of giving
up the requirement of dual criminality.