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ITU- BDT Arab Regional Workshop on Legal Aspects of Child Online Protection Algiers (Algeria), 24-25 June 2012 Criminal Law – Concepts and Best Practices.

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Presentation on theme: "ITU- BDT Arab Regional Workshop on Legal Aspects of Child Online Protection Algiers (Algeria), 24-25 June 2012 Criminal Law – Concepts and Best Practices."— Presentation transcript:

1 ITU- BDT Arab Regional Workshop on Legal Aspects of Child Online Protection Algiers (Algeria), June 2012 Criminal Law – Concepts and Best Practices Definition and criminalization of child abuse material Presented by Judge Dr. Ehab Elsonbaty Cyber Crime expert وزارة البريد وتكنولوجيات الإعلام والاتصال

2 Why should we care about CYBER CRIME & CYBER SECURITY?

3 Clarification of definitions Cyber Crime. Internet Crime. Computer Crime. Hi-tech Crime. Information Technology Crime OVER, ON, THROUGH, WITH computers, mobiles and Internet.

4 Regulate or not to regulate, is this the question? The ability of the legislations of many states to govern computer activities properly is under question thanks to the rapid development of technology which cause new problems on a speed regular bases. The interaction problems between technicians and lawyers. We should not – while legislating for computers - bother by detailed technological issues, But rather a main frame which enables the law to adopt the best technology exists in the field in order to apply its provisions properly.

5 Types of threats – Computers may be a tool (instrument)/fraud or incidental to an offence, but still significant for law enforcement purposes /saved data or subject (target) to crimes?

6 Classical crimes! 1 –A-Computer related crimes: Theft and Fraud. Industrial espionage. Facilitation of prostitution. Forgery. Terrorism.

7 Classical crimes! 2 B- Content related crimes: The information and the data which are processed by computers are most of the times much more valuable than the hardware itself. Copy rights. Child abuse online. Stalking, Harassment, Hate Speech. Offences against Morality.

8 Classical crimes! 3 Our existing legal systems can accommodate this type of computer related crime in many cases. It would better that some articles in the penal code be modified in order to make this accommodation process nice and easy for all the interested parties such as law enforcement bodies and judges.

9 C- Sabotage crimes 1 This type of cyber crimes covers the crimes which affect the – security, integrity, confidentiality, reliability and availability of computer systems.

10 C- Sabotage crimes 2 Unauthorised access to computer systems: Unauthorized access: Unauthorized access with out committing crimes. Unauthorized access with the intention to commit another crime: Copy – send. Unauthorized modification. Delete. DOS. Compromise. Improve?

11 C- Sabotage crimes 3 In this type of crimes, A legislation is needed. For a very simple reason, that they did not exist before, and therefore they are not covered yet by the current laws. Egypt draft law for cyber security.

12 policy Establish, that any act against a child which is illegal in the real world is illegal online and that the online data protection and privacy rules for legal minors are also adequate

13 Child Abuse Material 1 photographs or videos of children being sexually exploited and abused are called either child pornography" or indecent images of children. Better: child abuse material or CAM because it is felt that this term more accurately conveys the real nature of the content. The Internet has completely transformed the scale and nature of the production and distribution of CAM. with adult bookstores springing up in many European and American cities. A massive amount of pornography of all kinds right across the severity spectrum. a large supply network arose very quickly.

14 Child Abuse Material 2 Historically, the difficulties of finding CAM at this point meant that people had to take huge risks and a lot of expense in order to get access to material. All of this changed with the advent of the Internet. Accessibility (the Internet makes CAM available 24/7 all the year round) Affordability (most CAM is free and available for swap or simple download) Anonymity (people genuinely believe that their communications on the Internet are private and hidden). This encouraged them to seek out and deal in CAM as they felt there were no repercussions.

15 Child Abuse Material 3 All kinds of estimates have been made at different points about of the number of web sites involved, the number of children being abused to create the images and of the total monetary value of the market in the images. A substantial number of people involved in the viewing and distribution of CAM. Involvement of organized crime in the commercial distribution of this material. The number of illegal images now in circulation on the Internet runs into many millions.

16 Combating CAM 1 The adoption by all countries of appropriate legislation against the misuse of information and communication technologies (ICTs) for criminal or other purposes is central to achieving global cybersecurity. inherently international in scope and require international cooperation, investigative assistance, and common substantive and procedural provisions. The development of adequate national legislation, the related cybercrime legal framework, and within this approach, international harmonization. Criminal law provisions to criminalize acts such as computer fraud, illegal access, data interference, copyright violations and CAM. The fact that provisions exist in the criminal code that are applicable to similar acts committed in the real world does not mean that they can be applied to acts committed over the Internet as well. An analysis of current national laws is vital to identify any possible gaps.

17 Combating CAM 2 Identify and define legislative language and reference material that can assist countries in the establishment of harmonized cybercrime laws and procedural rules. The ITU has been working on the advance the global harmonization of cybercrime laws. The International Centre for Missing & Exploited Children (ICMEC) released its report on Child Pornography: Model Legislation & Global Review. To understanding of existing CAM legislation and to ascertain the importance of the issue with regard to national political agendas. The study focused on a number of key areas: legislation specific to CAM; laws that provide a definition of CAM; laws that criminalize possession, regardless of intent to distribute; laws that address computer facilitated crimes related to CAM; and reporting by ISPs.

18 Combating CAM 3 Criminals who sexually exploit children, will prefer to victimize children in countries lacking legislation or strict enforcement and in countries that exist outside the framework of international cooperation. Adopt specific legislation to criminalize CAM and include offences specific to the use of technology and the Internet as it relates to CAM; otherwise criminals will take advantage of loopholes in the law. Greater commitment of resources in order to enforce these specific laws and for training for judicial, prosecutorial and law enforcement officials.

19 Combating CAM 4 Fundamental areas of legislation should include: 1- Defining a child in a precise and clear manner in accordance with the UN Convention of the Rights of the Child. 2- Defining child abuse material (CAM) to include specific computer and Internet terminology. 3- Creating criminal offences specific to: possession, manufacture and distribution of CAM, including pseudo images, deliberately downloading or viewing such images on the Internet. 4- Creating criminal penalties for parents or guardians who agree to or who facilitate their childs participation in CAM. 5- Creating penalties for those who make known to others where to find CAM; Making attempts at crimes related to CAM a criminal offence. 6- Addressing criminal liability of children involved in CAM. 7- Criminal liability must focus on the adult offender, not the child victim. 8- Enhancing penalties for repeat offenders, organized crime members and other aggravated factors to be considered upon sentencing.

20 Combating CAM 5 A basic definition of CAM should include: 1- the visual representation or depiction of a child engaged in a real or simulated sexual display or act, or pseudo images of the same; 2- it should also take into account different technologies such as computers, the Internet, cell phones, PDAs, game consoles, video cameras, and DVDs, are used to facilitate CAM. 3- making it clear that CAM and everything connected with it is illegal, irrespective of the platform.

21 Numbers only 45 countries have legislation sufficient to combat child pornography offenses (8 countries meet all of the criteria set forth above and 37 countries meet all but the last criteria, pertaining to ISP reporting); and 89 countries have no legislation at all that specifically addresses child pornography. Of the remaining Countries that do have legislation specifically addressing child pornography: 52 do not define child pornography in national legislation; 18 do not explicitly provide for computer-facilitated offenses; and 33 do not criminalize possession of child pornography, regardless of the intent to distribute.

22 Council of Europe Convention on Cybercrime 1 Article 9 – Offences related to child pornography (1) legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the following conduct: a) producing child pornography for the purpose of its distribution through a computer system; b) offering or making available child pornography through a computer system; c) distributing or transmitting child pornography through a computer system; d) procuring child pornography through a computer system for oneself or for another person; e) possessing child pornography in a computer system or on a computer-data storage medium.

23 Council of Europe Convention on Cybercrime 2 Article 9 – (2) the term child pornography shall include pornographic material that visually depicts: a) a minor engaged in sexually explicit conduct; b) a person appearing to be a minor engaged in sexually explicit conduct; c) realistic images representing a minor engaged in sexually explicit conduct. (3) the term minor shall include all persons under 18 years of age. A Party may, however, require a lower age-limit, which shall be not less than 16 years. 4) may reserve the right not to apply, in whole or in part, paragraphs 1, subparagraphs d. and e, and 2, sub-paragraphs b. and c.

24 Council of Europe Convention on Cybercrime 3 1- The age of the person involved: definition of a child in Article 1 of the UN Convention as all persons less than 18 years old. Other countries define minors as a person under 14 years old. 2- The criminalization of the possession of child pornography: one effective way to curtail the production of child pornography is to make possession illegal. However, the Conventions enable the parties in Paragraph 4 to exclude the criminalization of mere possession, by restricting criminal liability to the production, offer and distribution of child pornography only. 3- The creation or integration of fictional images: These images can - without necessarily creating harm to a real 'child' - be used to seduce children into participating in such acts. 4- Mental element: Requires that the offender is carrying out the offences intentionally. 5- Without right: The act is not carried out without right only if members of law enforcement agencies are acting within an investigation.

25 Criminal Law – Concepts and Best Practices Definition and criminalization of child abuse material Presented by Judge Dr. Ehab Elsonbaty Cyber Crime expert وزارة البريد وتكنولوجيات الإعلام والاتصال

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