Diffusion of the Budapest Convention on cybercrime and the development of cybercrime legislation in Pacific Island countries: ‘Law on the books’ vs ‘law in action’

The Council of Europe Convention on Cybercrime,¹ referred to as the Budapest Convention on Cybercrime, has been diffused globally, and is serving as a benchmark or a ‘model law’ for drafting national cybercrime legislation in many countries worldwide. This paper argues that, through the mechanism of ‘state socialization’ combined with incentives, e.g. assistance in building law enforcement capacity, the diffusion of the Budapest Convention has had a profound influence on the development of cybercrime legislation in a number of Pacific Island Countries (PICs).² Some PICs have expressed their great interest in acceding to the Convention and ‘imported’ several provisions from the Convention. This article, nevertheless, contends that these PICs do not seem to consider carefully whether the ‘imported’ law is applicable to their existing law enforcement capacity. It is evident that various domestic factors, such as lack of resources, have deterred the enforcement of cybercrime laws in these countries. As the result, although those PICs would have adequate cybercrime laws ‘on the books’, ‘law in action’ is still feeble.     

Cybercrime and legislation: a critical reflection on the Cybercrimes Act, 2015 of Jamaica

Providing sound legislative measure is a critical part of the national and international responses to cybercrime. The primary objective of this research is to raise awareness of the recently enacted Cybercrimes Act, 2015 of Jamaica, which is examined through the lens of the Convention on Cybercrime. The substantive law provisions are explored and it is revealed that there is some level of harmonisation with the Convention on Cybercrime. The analysis also showed that cybercrime laws in Jamaica are a composite of related legislation where these ought to be taken in consideration in any analysis of the currency or suitability for fighting cybercrime.     

It wasn't all white light before Prism: Law enforcement practices in gathering data abroad,and proposals for further transnational access at the Council of Europe

This is a brief comment on a meeting held at the Council of Europe in Strasbourg, which discussed ways of improving transnational access to data by law enforcement through the Cybercrime Convention. In particular, the possible introduction of a new protocol, and a guidance note on art. 32(b), were considered. It is argued that there are serious concerns with both proposals. Moreover, the meeting revealed a surprising lack of knowledge as to current levels of cooperation between law enforcement and foreign service providers.     

Data Theft? Cybercrime and the Increasing Criminalization of Access to Data

The use of computers in the commission of crime, so-called ??cybercrime??, presents a considerable challenge to law enforcement. Central to the prosecution of cybercrime is the offence of unauthorised access to a computer, or ??hacking??. Originally conceived of as analogous to trespass, the trend in some jurisdictions has been toward punishing access to computer data per se. This issue also arises under the Council of Europe Convention on Cybercrime which criminalizes ??offences against the confidentiality, integrity and availability of computer data and systems??. As the criminal law traditionally provides protection only to limited forms of information, the increasing use of the criminal law to protect computer data therefore confers on it a status not enjoyed by information stored in other forms. Drawing upon the laws of Australia, the United Kingdom and the United States, this article explores the increasing criminalization of access to computer data. It describes the evolution of cybercrime laws and considers ways in which problems of over breadth may be avoided. Questions will also be raised as to the appropriate role of the criminal law in protecting information.     

The European Commission's Guidance on Article 102TFEU: From Inferno to Paradiso?

The European Commission has for the first time issued a document expressing its official position on the enforcement of Article 102TFEU which prohibits the abuse of a dominant position on the Common Market. The Commission Guidance on enforcement priorities in applying Article 102TFEU to exclusionary abuses (adopted in December 2008) has ended a review of about four years. Given the increased enforcement of Article 102TFEU at the European level and the fact that many national provisions in the EU on unilateral conduct are modelled after Article 102TFEU, how the Commission intends to enforce Article 102TFEU is crucial for the application of competition law and the undertakings subject to it under European and/or national laws. The review period was preceded by severe criticisms of the Commission's approach to Article 102TFEU for protecting competitors instead of competition and for being insufficiently grounded in modern economic thinking. At the heart of the review and the discussions surrounding it lay the question of the objective of Article 102TFEU. Some, including the Directorate General for Competition claimed the objective to be ‘consumer welfare’, whereas some argued that ‘consumer welfare’ cannot be adopted as the objective at the expense of the protection of the competitive process. This article critically reviews the Commission Guidance, with an eye to assessing the ultimate objective of and the test of harm under Article 102TFEU. After discussing whether the Guidance indeed sets priorities, it examines the general approach of the Guidance to exclusionary conduct. It points out that despite there being some welcome novelties in the Guidance, there are also suggestions therein whose legitimacy and legality are questionable. Reflecting on the Guidance as a soft‐law instrument, the article argues that although regarding the objective of Article 102TFEU, the Commission's apparent tendency towards ‘consumer welfare’ is not unlawful, the reform of Article 102TFEU to bring it more in line with modern economic and legal thinking seems to be far from complete.     

打击网络犯罪国际规则的博弈与中国方案

现有的打击网络犯罪国际规范包括公约、协定(指令)和示范法三大类,其中公约类规范是网络犯罪国际规则博弈的焦点。欧洲委员会《布达佩斯公约》和俄罗斯提出的《联合国打击网络犯罪合作公约(草案)》虽然各有特点,但是均存在一定不足,难以成为中国参与网络犯罪国际规则制定的理想法律范本。联合国大会第74/247号决议的通过为网络犯罪规则制定提供了新的发展方向,制定全球性网络犯罪国际公约的中国方案应当以联合国为基础平台,尤其是注重发挥新设立的政府间专家委员会的作用,并将坚持主权原则、体现发展中国家的诉求、推动不同国家打击网络犯罪的协作作为核心主张。具体层面,应以倡导网络空间命运共同体、充分体现中国的经验做法、充分体现网络犯罪治理的时代性与前瞻性为指导理念,同时分总则、定罪、执法程序、国际合作、网络犯罪预防和最后条款等部分进行设计。     

The stages of cybercrime investigations: Bridging the gap between technology examination and law enforcement investigation

Cybercrime investigation can be argued as still in its infancy. The technical investigation practices and procedures of global law enforcement are also still evolving in response to the growing threat of the cybercriminal. This has led to considerable debate surrounding the adequacy of current technical investigation models, examination tools and the subsequent capability of law enforcement to tackle cybercrime. To bridge the gap between low-level technology recovery and digital forensic examination, and to overcome the many technical challenges now faced by law enforcement; this paper presents an extended cybercrime investigation model capable of guiding the investigative practices of the broader law enforcement community. The Stages of Cybercrime Investigations discussed throughout this paper, demonstrate the logical steps and primary considerations vital to investigating cyber related crime and criminality. The model is intended to provide both technical and non-technical investigative resources, covering mainstream law enforcement, partner agencies and specialist technical services, with a formal and common structure when investigating the complex technical nature of cybercrime. Finally, the model is further aimed at providing cybercrime investigators with a means to consolidate understanding, share knowledge and communicate the resulting outcomes as an investigation moves through each relevant stage.     

China's stance on the Google/Motorola merger: Implications for competition in intellectual property-intensive sectors

China's merger enforcement agency approved the Google/Motorola merger with conditions. This pattern of approval is not in full accordance with that in other jurisdictions, including the United States and the European Union, which made unconditional approvals. This contradiction attracted ample criticism; some critics believe that China's policy is designed to protect domestic industry. In investigating the Chinese merger agency's decision and the basis for its decision making, this article finds that much of the criticism is groundless and misleading because the critics have failed to incorporate all elements of the global value chain of mobile intelligent terminals into their analyses. The investigation also shows that, although the decision makers are less experienced, their decisions are based on Chinese competition law and market realities. It is important for international firms to be aware of this pattern in merger analysis.     

《网络犯罪公约》中的证据调查制度与我国相关刑事程序法比较

20 0 1年 11月 8日欧洲委员会《网络犯罪公约》是国际社会合作打击网络犯罪的第一个国际公约 ,其主要目标是在缔约方之间建立打击网络犯罪的共同的刑事政策、一致的法律体系和国际协助。该公约第二章“国家层面上的措施”的第二部分“程序法”规定了有关电子证据调查的特殊程序 ,为各国制定电子证据刑事调查制度提供了一套具有开创价值的立法模型。本文对《网络犯罪公约》中的程序法规定和我国相关立法进行了比较 ,并提出了完善我国电子证据刑事调查措施的立法建议     

中国拒绝承认与执行外国仲裁裁决实务研究

国际仲裁是解决跨国商事纠纷的主要方式。《纽约公约》使外国仲裁裁决在几乎全球范围内获得承认及执行。中国是《纽约公约》的成员国,中国法院在判断是否应拒绝承认和执行某一外国仲裁裁决时,主要是以《纽约公约》作为法律依据。结合《纽约公约》的规定和司法实践,本文分析了中国对外国仲裁裁决的界定标准,并系统地论述了中国拒绝承认与执行外国仲裁裁决的理由。     

Conflict or compatibility? The trade,conservation and animal welfare dimensions of cites

Abstract

While analysis of the effectiveness of the Convention on International Trade in Endangered Species (CITES) often focuses on its ability to ensure sustainable trade in the species it regulates, the treaty also contains many provisions intended to ensure the welfare of species introduced into international trade. While such provisions serve salutary objectives, they are often complied with only in the breach. Efforts should be made by the Parties to CITES to ensure implementation of the animal welfare provisions of CITES through stricter enforcement measures, enactment of national legislation and an interpretation of treaty provisions that furthers the underlying welfare objectives of the Convention.     

Procedural law provisions of the council of Europe convention on cybercrime1

The Council of Europe Convention on Cybercrime is the first international treaty on crimes committed via the Internet and other computer networks. It aims principally at harmonising the domestic criminal law elements of offences and connected provisions in the area of cyber‐crime and setting up a fast and effective regime of international co‐operation. Considering the inadequacy of traditional investigative powers and the absence, in most countries, of specific procedural rules applicable in cyberspace, the Convention is also aiming at providing for the domestic criminal procedure law powers necessary for the investigation and prosecution of criminal offences that are likely to be committed via computer systems, as well as for any type of criminal investigation where it is necessary to collect information that exists in electronic form. These powers, some of which are particulary innovative, correspond to different objectives, such as compiling evidence, locating the source and identifying the perpetrator of an offence. However, they are all intended to enable computer data to be obtained or gathered in the context of ongoing criminal investigations, and do not have a proactive effect or scope. The Conventions fundamental premise is thus to recognise that digital data has a legal value in itself and probative force that is identical to that of material evidence existing in the non‐virtual world.     

The GDPR: A game changer for electronic identification schemes? The case study of Gov.UK Verify

This article offers an interdisciplinary analysis of the General Data Protection Regulation (GDPR) in the context of electronic identification schemes. Gov.UK Verify, the UK Government's electronic identification scheme, and its compatibility with some important aspects of EU data protection law are reviewed. An in-depth examination of Gov.UK Verify's architecture and the most significant constituent elements of both the Data Protection Directive and the imminent GDPR – notably the legitimising grounds for the processing of personal data and the doctrine of joint controllership – highlight several flaws inherent in the Gov.UK Verify's development and mode of operation. This article advances the argument that Gov.UK Verify is incompatible with some major substantive provisions of the EU Data Protection Framework. It also provides some general insight as to how to interpret the requirement of a legitimate legal basis and the doctrine of joint controllership. It ultimately suggests that the choice of the appropriate legal basis should depend upon a holistic approach to the relationship between the actors involved in the processing activities.     

Online platforms and pricing: Adapting abuse of dominance assessments to the economic reality of free products

Online platforms, which are at the forefront of today's economy, are subject to intensive competition law enforcement. However, the platform business model presents challenges for the application of competition law. Most notably, they appear to offer consumers a great number of their products for free. The explanation for most of these supposedly free products is offered by two-sided market theory: consumers may not be paying, but the ‘other’ side of the market is. This other side of the market often consists of advertisers, which pay the platform for access to the consumers’ information (to target advertisements) and attention (to show the advertisements). As many of these platforms are now potentially dominant, they come within the scope of competition law's abuse of dominance provision, including the doctrines of predatory and excessive pricing. These price-based theories need to adapt to the often price-less platform business model in order to prevent competition authorities from making both type I and type II enforcement errors. At the same time, competition law enforcement needs to consider—and at times give priority to—other branches of law that address abusive behaviour concerning free products. Through the use of case studies, this article therefore suggests ways in which abuse of dominance assessments can take into account the economic reality of free products.     

When Federal Law Goes Unnoticed: Assessing the CISG's Applicability Across U.S. Courts Based on an Empirical Research of Decisions from 1988 to 2020

The United Nations Convention on Contracts for the International Sale of Goods (CISG) has reached the level of acceptance that it can be recognized as the face of international sales law. Over a century ago, the late Roscoe Pound drew attention to the dichotomy between the law as written and the law as experienced in practice. The law of the CISG “on the books” is the law of the United States. With the growth of international trade, one might expect its importance to grow in the realm of law “in action.” This article explores the CISG in action in U.S. courts during its almost four decades of being the law on the books in the United States. To this end, the authors built an original dataset based on their Westlaw search of all decisions mentioning the CISG across all U.S. federal and state courts from 1988 (when the CISG entered into force) through 2019. The dataset provides unprecedented insights into: (1) how parties raise the issue of the applicability of the CISG, (2) how courts have ruled on the Convention's applicability, and (3) the provisions of the Convention that appear most frequently in these disputes. This article empirically assesses, through logistic regressions, which factors are statistically significant for predicting if a court will apply (or decline to apply) the Convention to a disputed transaction. Finally, the article highlights many ways in which the law in action may not be as robust or comprehensive as it appears on the books.     

The United Kingdom Identity Cards Act 2006 Civil or Criminal?

After much controversy and debate, the United Kingdom Parliamentpassed the Identity Cards Act in March 2006. The new nationalidentity registration scheme established under the legislationwill be in operation in 2 years. Initially the scheme will notbe generally compulsory, though the intention is eventuallyto make it mandatory. The Act uses a mix of civil penalty andoffence provisions as part of its enforcement regime. This articleconsiders the approach of the legislation, particularly thepractical implications of authentication and verification ofidentity under the scheme and the potential impact on the effectivenessof the enforcement regime, having regard to the right againstself-incrimination under the Human Rights Act 1988 (UK) andArticle 6 of the Convention for the Protection of Human Rightsand Fundamental Freedoms 1950, and the common law privilegeagainst self-incrimination.     

Administrative,legal, and ethical practices in the psychological testing of law enforcement officers

Recently, more law enforcement agencies have chosen to use psychological testing as an important component of their preemployment screening programs. Important legal and ethical issues have been raised by the increased use of psychological testing for this purpose. These issues include the applicant's right to privacy, the validity of the psychological instrument(s) used, the definition of what constitutes an “unsuitable” candidate, and the existence of racial and/or sexual bias. This article presents ten suggestions that address some of these issues and that may aid law enforcement agencies in adopting the spirit of the Uniform Guidelines on Employee Selection Procedures and other psychological-testing standards.     

NGO Standing in the European Court of Justice – Does the Aarhus Regulation Open the Door?

This article assesses whether the new European Community (EC) Regulation applying the provisions of the Aarhus Convention to EC institutions and bodies provides non-governmental organizations (NGOs) with access to justice in compliance with the EC's obligations under the Aarhus Convention. We conclude that, notwithstanding the uncertainty over the wording finally adopted in the Aarhus Regulation, the procedural rights granted to NGOs in the Regulation brings NGOs within the standing requirements of the EC Treaty, such that they can seek justice in the European courts. This is a significant development in the field of environmental democracy and procedural rights to the environment – including the ability to seek enforcement of the right to a healthy environment.     

Cybercrime Tendencies and Legislation in the Republic of Macedonia

The advancement of information and communication technologies opens new venues and ways for cybercriminals to commit crime. There are several different types of cybercrime offences that need to be treated in a separate and different manner. The major international source that provides guidelines for treatment of cybercrime is the Convention on Cybercrime adopted by the Council of Europe and the European Commission Action Plan. The purpose of the paper is to present, discuss and analyze the Macedonian legislation treating cybercrime, with respect to the specific cases typically encountered in practice and the international guidelines concerning cybercrime. The major source of cybercrime legislation in Macedonia is the Criminal Code with provisions thereof in ten of its articles; it addresses cybercrimes such as personal data abuse, copyright and piracy issues, production and distribution of child pornography, computer viruses, intrusions into computer systems, computer fraud and computer forgery. We also present and analyze reports on cybercrime complaints and victims from Macedonia, issued by the Internet Crime Complaint Center and the Macedonian Ministry of Internal Affairs. The reports reveal the unusually high number of complaints for perpetrators and victims originating from Macedonia. Furthermore, we highlight several recent cybercrime cases reported in Macedonia. All things considered, the Macedonian penal legislation is modern and it follows the current European and world standards. It provides guidelines for successful resolution of cybercrime committed in the Republic of Macedonia. However, it could be improved by a more active inclusion of Macedonian authorities in the global response to cybercrime and by stronger enforcement of cybercrime prevention measures and strategies.