Legal experts have voiced their concern about new European Union cybercrime rules approved by the 15 national justice ministers last Friday, because they say the rules don’t differentiate between a real criminal and political protesters expressing their views by e-mail.
Last Wednesday protesters against a possible U.S. war against Iraq barraged the White House and U.S. Senate offices with tens of thousands of messages by phone, fax and e-mail, as part of what was billed as the first-ever “virtual protest march.”
The 15 European ministers signed up to a code on cybercrime that makes no legal distinction between an online protester and the terrorists, virus merchants and hackers the code is designed to trap, according to legal practitioners and academics.
The code forces all 15 Union countries to adopt a new criminal offense: illegal access to, and illegal interference with an information system, and calls on national courts to impose jail terms of at least two years in serious cases.
In its introduction, the code references a recently adopted Council of Europe charter on cybercrime, which defines unsolicited e-mails designed to hinder the computer system of the recipient of the message as criminal activity.
If EU citizens bombarded British prime minister Tony Blair’s e-mail, fax or phone lines in the way thousands of American protesters targeted government offices in Washington last week, they could have committed a criminal offense under this new code, said Leon de Costa, chief executive of Judicium, a London-based legal consultancy.
“This code appears to catch overt protesters as well as covert criminals,” de Costa said, adding that “it criminalizes behavior which until now has been seen as lawful civil disobedience.”
The text also makes reference to the Charter of Fundamental Human Rights of the EU, but only to clauses safeguarding citizens’ right to life and their right to freedom and security. There is no reference to the article on citizens’ right to freedom of expression.
“The code does not ensure that freedom of expression will be respected,” said Thomas Vinje, a partner at law firm Morrison & Foerster LLP. He described the text agreed today as “unbalanced and unfortunate.”
He added that there is a risk this code “might be interpreted to prohibit not only clearly bad behavior that everyone of good faith would agree should be prohibited, but also behavior involving legitimate expression of unpopular opinion.”
“The law is weak and imprecise,” said Ulrich Sieber, a professor of law at Munich University. Lawmakers should amend the text, adding a specific reference to the freedom of expression article in the Convention of Human Rights, he said.
“You could have a problem of interpretation with judges, especially old judges who are unfamiliar with new communications technologies,” Mr Sieber said.
“This decision by the justice ministers is a nonsense,” said Italian European Parliamentarian Marco Cappato. The European Parliament only has a consultative role so it cannot force changes to the law.
Cappato said the cybercrime decision is one of many examples of civil liberties in the European Union being compromised in the name of security. “It’s not an isolated case,” he said, adding that it is “no accident” that there is no specific reference to people’s rights to freedom of expression.
“It suits the national justice ministries to criminalize activities on an EU-wide level. They seek greater coordination with regard to prosecuting, but there is very little effort made to coordinate legal defense,” he said.
Sieber believes that absence of a reference to the right to freedom of expression is an oversight, rather than a deliberate tactic.
An EU diplomat involved in the drafting of the cybercrime code agreed that protection mechanisms in the code are soft. “We still have the opportunity to look at the recitals and make modifications,” he said under the normal condition of anonymity.
He added that the cybercrime code’s inability to distinguish between a covert criminal and an overt protester “is an item the we will be thinking about when we modify the text. It could be that the freedom of expression article in Convention of Human Rights needs to be flagged,” he said.
