The Convention on Cybercrime, also known as the Budapest Convention on Cybercrime or the Budapest Convention, is the first international
treaty
A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal per ...
seeking to address
Internet
The Internet (or internet) is the global system of interconnected computer networks that uses the Internet protocol suite (TCP/IP) to communicate between networks and devices. It is a '' network of networks'' that consists of private, p ...
and
computer crime
A cybercrime is a crime that involves a computer or a computer network.Moore, R. (2005) "Cyber crime: Investigating High-Technology Computer Crime," Cleveland, Mississippi: Anderson Publishing. The computer may have been used in committing the ...
(
cybercrime
A cybercrime is a crime that involves a computer or a computer network.Moore, R. (2005) "Cyber crime: Investigating High-Technology Computer Crime," Cleveland, Mississippi: Anderson Publishing. The computer may have been used in committing t ...
) by harmonizing
national laws, improving investigative techniques, and increasing cooperation among nations. It was drawn up by the
Council of Europe
The Council of Europe (CoE; french: Conseil de l'Europe, ) is an international organisation founded in the wake of World War II to uphold human rights, democracy and the rule of law in Europe. Founded in 1949, it has 46 member states, with a p ...
in
Strasbourg
Strasbourg (, , ; german: Straßburg ; gsw, label= Bas Rhin Alsatian, Strossburi , gsw, label= Haut Rhin Alsatian, Strossburig ) is the prefecture and largest city of the Grand Est region of eastern France and the official seat of the ...
, France, with the active participation of the Council of Europe's observer states
Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by to ...
,
Japan
Japan ( ja, 日本, or , and formally , ''Nihonkoku'') is an island country in East Asia. It is situated in the northwest Pacific Ocean, and is bordered on the west by the Sea of Japan, while extending from the Sea of Okhotsk in the north ...
, the
Philippines
The Philippines (; fil, Pilipinas, links=no), officially the Republic of the Philippines ( fil, Republika ng Pilipinas, links=no),
* bik, Republika kan Filipinas
* ceb, Republika sa Pilipinas
* cbk, República de Filipinas
* hil, Republ ...
,
South Africa
South Africa, officially the Republic of South Africa (RSA), is the southernmost country in Africa. It is bounded to the south by of coastline that stretch along the South Atlantic and Indian Oceans; to the north by the neighbouring countri ...
and the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
.
The Convention and its Explanatory Report was adopted by the
Committee of Ministers of the Council of Europe
The Committee of Ministers of the Council of Europe (French: ''Comité des ministres du Conseil de l'Europe'') or Committee of Ministers (French: ''Comité des ministres'') is the Council of Europe's decision-making body. It comprises the Foreign ...
at its 109th Session on 8 November 2001. It was opened for signature in
Budapest
Budapest (, ; ) is the capital and most populous city of Hungary. It is the ninth-largest city in the European Union by population within city limits and the second-largest city on the Danube river; the city has an estimated population ...
, on 23 November 2001 and it entered into force on 1 July 2004. As of October 2022, 67 states have ratified the convention, while a further two states (
Ireland
Ireland ( ; ga, Éire ; Ulster Scots dialect, Ulster-Scots: ) is an island in the Atlantic Ocean, North Atlantic Ocean, in Northwestern Europe, north-western Europe. It is separated from Great Britain to its east by the North Channel (Grea ...
and South Africa) have signed the convention but not ratified it.
Since it entered into force, important countries like
Brazil
Brazil ( pt, Brasil; ), officially the Federative Republic of Brazil (Portuguese: ), is the largest country in both South America and Latin America. At and with over 217 million people, Brazil is the world's fifth-largest country by area ...
and
India
India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the seventh-largest country by area, the second-most populous country, and the most populous democracy in the world. Bounded by the Indian Ocean on the so ...
have declined to adopt the Convention on the grounds that they did not participate in its drafting. Russia opposes the Convention, stating that adoption would violate Russian sovereignty, and has usually refused to cooperate in law enforcement investigations relating to cybercrime. It is the first multilateral legally binding instrument to regulate cybercrime. Since 2018, India has been reconsidering its stand on the Convention after a surge in cybercrime, though concerns about sharing data with foreign agencies remain.
On 1 March 2006, the
Additional Protocol to the Convention on Cybercrime
Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems is an additional protocol to the Council of Europe Convention on Cybercrime. This ad ...
came into force. Those States that have ratified the additional protocol are required to criminalize the dissemination of
racist
Racism is the belief that groups of humans possess different behavioral traits corresponding to inherited attributes and can be divided based on the superiority of one race over another. It may also mean prejudice, discrimination, or antagonism ...
and
xenophobic
Xenophobia () is the fear or dislike of anything which is perceived as being foreign or strange. It is an expression of perceived conflict between an in-group and out-group and may manifest in suspicion by the one of the other's activities, a ...
material through computer systems, as well as threats and insults motivated by racism or xenophobia.
Objectives
The Convention is the first international treaty on crimes committed via the Internet and other computer networks, dealing particularly with
infringements of copyright,
computer-related fraud,
child pornography
Child pornography (also called CP, child sexual abuse material, CSAM, child porn, or kiddie porn) is pornography that unlawfully exploits children for sexual stimulation. It may be produced with the direct involvement or sexual assault of a chi ...
,
hate crime
A hate crime (also known as a bias-motivated crime or bias crime) is a prejudice-motivated crime which occurs when a perpetrator targets a victim because of their membership (or perceived membership) of a certain social group or racial demograph ...
s, and violations of
network security
Network security consists of the policies, policies, processes and practices adopted to prevent, detect and monitor unauthorized access, Abuse, misuse, modification, or denial of a computer network and network-accessible resources. Network securi ...
. It also contains a series of powers and procedures such as the search of computer networks and
lawful interception Lawful interception (LI) refers to the facilities in telecommunications and telephone networks that allow law enforcement agencies with court orders or other legal authorization to selectively wiretap individual subscribers. Most countries require ...
.
Its main objective, set out in the preamble, is to pursue a common criminal policy aimed at the protection of society against cybercrime, especially by adopting appropriate legislation and fostering.
The Convention aims principally at:
* Harmonizing the domestic criminal substantive law elements of offenses and connected provisions in the area of cyber-crime
* Providing for domestic criminal procedural law powers necessary for the investigation and prosecution of such offenses as well as other offenses committed by means of a computer system or evidence in relation to which is in electronic form
* Setting up a fast and effective regime of international cooperation
The following offenses are defined by the Convention: illegal access, illegal interception, data interference, system interference, misuse of devices, computer-related
forgery
Forgery is a white-collar crime that generally refers to the false making or material alteration of a legal instrument with the specific intent to defraud anyone (other than themself). Tampering with a certain legal instrument may be forbidd ...
, computer-related
fraud
In law, fraud is intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law (e.g., a fraud victim may sue the fraud perpetrator to avoid the fraud or recover monetary compens ...
, offenses related to child pornography, and offenses related to
copyright
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, education ...
and
neighboring rights.
It also sets out such procedural law issues as expedited preservation of stored data, expedited preservation and partial disclosure of traffic data, production order, search and seizure of computer data, real-time collection of traffic data, and interception of content data. In addition, the Convention contains a provision on a specific type of trans-border access to stored computer data which does not require mutual assistance (with consent or where publicly available) and provides for the setting up of a 24/7 network for ensuring speedy assistance among the Signatory Parties. Further, as conditions and safeguards, the Convention requires the provision for adequate protection of human rights and liberties, including rights arising pursuant to obligations under
European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
,
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedo ...
, and other applicable
international human rights instruments
International human rights instruments are the treaties and other international texts that serve as legal sources for international human rights law and the protection of human rights in general. There are many varying types, but most can be clas ...
, and shall incorporate the
principle of proportionality
Proportionality is a general principle in law which covers several separate (although related) concepts:
*The concept of proportionality is used as a criterion of fairness and justice in statutory interpretation processes, especially in consti ...
.
The Convention is the product of four years of work by European and international experts. It has been supplemented by an Additional Protocol making any publication of racist and xenophobic
propaganda
Propaganda is communication that is primarily used to influence or persuade an audience to further an agenda, which may not be objective and may be selectively presenting facts to encourage a particular synthesis or perception, or using loaded ...
via computer networks a criminal offense, similar to Criminal Libel laws. Currently,
cyber terrorism is also studied in the framework of the Convention.
Accession by the United States
Its ratification by the
United States Senate
The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States.
The composition and pow ...
by unanimous consent in August 2006 was both praised and condemned.
The United States became the 16th nation to ratify the convention.
The Convention entered into force in the United States on 1 January 2007.
Senate Majority Leader
Bill Frist
William Harrison Frist (born February 22, 1952) is an American physician, businessman, and politician who served as a United States Senator from Tennessee from 1995 to 2007. A member of the Republican Party, he also served as Senate Majority Lea ...
said: "While balancing civil liberty and privacy concerns, this treaty encourages the sharing of critical electronic evidence among foreign countries so that law enforcement can more effectively investigate and combat these crimes".
The Electronic Privacy Information Center said:
Although a common legal framework would eliminate jurisdictional hurdles to facilitate the law enforcement of borderless cyber crimes, a complete realization of a common legal framework may not be possible. Transposing Convention provisions into domestic law is difficult especially if it requires the incorporation of substantive expansions that run counter to constitutional principles. For instance, the United States may not be able to criminalize all the offenses relating to child pornography that are stated in the Convention, specifically the ban on virtual child pornography, because of its
First Amendment
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
Arts and media Music
* 1$T, American rapper, singer-songwriter, DJ, and rec ...
's free speech principles. Under Article 9(2)(c) of the Convention, a ban on child pornography includes any "realistic images representing a minor engaged in sexually explicit conduct". According to the Convention, the United States would have to adopt this ban on virtual child pornography as well, however, the U.S. Supreme Court, in ''
Ashcroft v. Free Speech Coalition
''Ashcroft v. Free Speech Coalition'', 535 U.S. 234 (2002), is a U.S. Supreme Court case which struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 because they abridged "the freedom to engage in a substantial amou ...
'', struck down as unconstitutional a provision of the CPPA that prohibited "any visual depiction" that "is, or appears to be, of a minor engaging in sexually explicit conduct". In response to the rejection, the U.S. Congress enacted the
PROTECT Act
The PROTECT Act of 2003 (, 117 Stat. 650, S. 151, enacted April 30, 2003) is a United States law with the stated intent of preventing child abuse as well as investigating and prosecuting violent crimes against children. "PROTECT" is a contrived a ...
to amend the provision, limiting the ban to any visual depiction "that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct" (18 U.S.C. § 2252(B)(b)).
Accession by other non–Council of Europe states
The Convention was signed by Canada, Japan, the United States, and South Africa on 23 November 2001, in Budapest. As of October 2022, the non–Council of Europe states that have ratified the treaty are
Argentina
Argentina (), officially the Argentine Republic ( es, link=no, República Argentina), is a country in the southern half of South America. Argentina covers an area of , making it the second-largest country in South America after Brazil, th ...
,
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
,
Cabo Verde
, national_anthem = ()
, official_languages = Portuguese
, national_languages = Cape Verdean Creole
, capital = Praia
, coordinates =
, largest_city = capital
, demonym ...
, Canada,
Chile
Chile, officially the Republic of Chile, is a country in the western part of South America. It is the southernmost country in the world, and the closest to Antarctica, occupying a long and narrow strip of land between the Andes to the east a ...
,
Colombia
Colombia (, ; ), officially the Republic of Colombia, is a country in South America with insular regions in North America—near Nicaragua's Caribbean coast—as well as in the Pacific Ocean. The Colombian mainland is bordered by the Car ...
,
Costa Rica
Costa Rica (, ; ; literally "Rich Coast"), officially the Republic of Costa Rica ( es, República de Costa Rica), is a country in the Central American region of North America, bordered by Nicaragua to the north, the Caribbean Sea to the no ...
,
Dominican Republic
The Dominican Republic ( ; es, República Dominicana, ) is a country located on the island of Hispaniola in the Greater Antilles archipelago of the Caribbean region. It occupies the eastern five-eighths of the island, which it shares wit ...
,
Ghana
Ghana (; tw, Gaana, ee, Gana), officially the Republic of Ghana, is a country in West Africa. It abuts the Gulf of Guinea and the Atlantic Ocean to the south, sharing borders with Ivory Coast in the west, Burkina Faso in the north, and To ...
,
Israel
Israel (; he, יִשְׂרָאֵל, ; ar, إِسْرَائِيل, ), officially the State of Israel ( he, מְדִינַת יִשְׂרָאֵל, label=none, translit=Medīnat Yīsrāʾēl; ), is a country in Western Asia. It is situated ...
, Japan,
Mauritius
Mauritius ( ; french: Maurice, link=no ; mfe, label=Mauritian Creole, Moris ), officially the Republic of Mauritius, is an island nation in the Indian Ocean about off the southeast coast of the African continent, east of Madagascar. It incl ...
,
Morocco
Morocco (),, ) officially the Kingdom of Morocco, is the westernmost country in the Maghreb region of North Africa. It overlooks the Mediterranean Sea to the north and the Atlantic Ocean to the west, and has land borders with Algeria to ...
,
Nigeria
Nigeria ( ), , ig, Naìjíríyà, yo, Nàìjíríà, pcm, Naijá , ff, Naajeeriya, kcg, Naijeriya officially the Federal Republic of Nigeria, is a country in West Africa. It is situated between the Sahel to the north and the Gulf o ...
,
Panama
Panama ( , ; es, link=no, Panamá ), officially the Republic of Panama ( es, República de Panamá), is a transcontinental country spanning the southern part of North America and the northern part of South America. It is bordered by Cos ...
,
Paraguay
Paraguay (; ), officially the Republic of Paraguay ( es, República del Paraguay, links=no; gn, Tavakuairetã Paraguái, links=si), is a landlocked country in South America. It is bordered by Argentina to the south and southwest, Brazil to th ...
,
Peru
, image_flag = Flag of Peru.svg
, image_coat = Escudo nacional del Perú.svg
, other_symbol = Great Seal of the State
, other_symbol_type = Seal (emblem), National seal
, national_motto = "Fi ...
, the
Philippines
The Philippines (; fil, Pilipinas, links=no), officially the Republic of the Philippines ( fil, Republika ng Pilipinas, links=no),
* bik, Republika kan Filipinas
* ceb, Republika sa Pilipinas
* cbk, República de Filipinas
* hil, Republ ...
,
Senegal
Senegal,; Wolof: ''Senegaal''; Pulaar: 𞤅𞤫𞤲𞤫𞤺𞤢𞥄𞤤𞤭 (Senegaali); Arabic: السنغال ''As-Sinighal'') officially the Republic of Senegal,; Wolof: ''Réewum Senegaal''; Pulaar : 𞤈𞤫𞤲𞤣𞤢𞥄𞤲𞤣𞤭 ...
,
Sri Lanka
Sri Lanka (, ; si, ශ්රී ලංකා, Śrī Laṅkā, translit-std=ISO (); ta, இலங்கை, Ilaṅkai, translit-std=ISO ()), formerly known as Ceylon and officially the Democratic Socialist Republic of Sri Lanka, is an ...
,
Tonga
Tonga (, ; ), officially the Kingdom of Tonga ( to, Puleʻanga Fakatuʻi ʻo Tonga), is a Polynesian country and archipelago. The country has 171 islands – of which 45 are inhabited. Its total surface area is about , scattered over in ...
and the United States.
Although
Egypt
Egypt ( ar, مصر , ), officially the Arab Republic of Egypt, is a transcontinental country spanning the northeast corner of Africa and southwest corner of Asia via a land bridge formed by the Sinai Peninsula. It is bordered by the Mediter ...
has not signed off on the Convention, Egyptian President
el-Sisi's government in 2018 has legislated two major computer-crime related laws. Targeting
social networking service
A social networking service or SNS (sometimes called a social networking site) is an online platform which people use to build social networks or social relationships with other people who share similar personal or career content, interests, act ...
such as
Facebook
Facebook is an online social media and social networking service owned by American company Meta Platforms. Founded in 2004 by Mark Zuckerberg with fellow Harvard College students and roommates Eduardo Saverin, Andrew McCollum, Dustin M ...
and
Twitter
Twitter is an online social media and social networking service owned and operated by American company Twitter, Inc., on which users post and interact with 280-character-long messages known as "tweets". Registered users can post, like, and ...
, the legislation criminalizes
fake news
Fake news is false or misleading information presented as news. Fake news often has the aim of damaging the reputation of a person or entity, or making money through advertising revenue.Schlesinger, Robert (April 14, 2017)"Fake news in reality ...
and terrorism, setting a flag on accounts which carry more than 5,000 subscribers or followers. The early legislation had been criticized by
Amnesty International
Amnesty International (also referred to as Amnesty or AI) is an international non-governmental organization focused on human rights, with its headquarters in the United Kingdom. The organization says it has more than ten million members and sup ...
, thus websites can appeal to the courts within 7 days of blacklisting.
[ ]
In fact
India
India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the seventh-largest country by area, the second-most populous country, and the most populous democracy in the world. Bounded by the Indian Ocean on the so ...
too "was reconsidering its position on becoming a member of the Budapest Convention because of the surge in cyber crime, especially after a push for digital India."
See also
*
Cyberstalking legislation
Cyberstalking and cyberbullying are relatively new phenomena, but that does not mean that crimes committed through the network are not punishable under legislation drafted for that purpose. Although there are often existing laws that prohibit stal ...
*
List of Council of Europe treaties
This is a list of multilateral treaties administered by the Council of Europe
The Council of Europe (CoE; french: Conseil de l'Europe, ) is an international organisation founded in the wake of World War II to uphold European Convention on Huma ...
*
2015 U.S. China Cybersecurity Agreement
References
Further reading
* Dennis Jlussi: ''Handle with care, but don't panic - Criminalisation of hacker tools in German criminal law and its effect on IT security professionals'', Hanover 2007
Viewonline o
Downloadas pdf file.
Center for Democracy and TechnologyCouncil of Europe Convention on Cybercrime
External links
Convention on Cybercrime homepagefrom the
Council of Europe
The Council of Europe (CoE; french: Conseil de l'Europe, ) is an international organisation founded in the wake of World War II to uphold human rights, democracy and the rule of law in Europe. Founded in 1949, it has 46 member states, with a p ...
{{DEFAULTSORT:Cybercrime Convention
Council of Europe treaties
Computer law treaties
Convention on Cybercrime
The Convention on Cybercrime, also known as the Budapest Convention on Cybercrime or the Budapest Convention, is the first international treaty seeking to address Internet and computer crime (cybercrime) by harmonizing national laws, improving ...
Treaties concluded in 2001
Treaties entered into force in 2004
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Convention on Cybercrime
The Convention on Cybercrime, also known as the Budapest Convention on Cybercrime or the Budapest Convention, is the first international treaty seeking to address Internet and computer crime (cybercrime) by harmonizing national laws, improving ...
International criminal law treaties
Treaties of Israel