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code, or command that results in unauthorised damage to a protected
[under the Act] computer.
7.3.5
Botswana legislation, specifically the Telecommunications Act and the
Botswana Telecommunications Corporation Act, prohibit interference
with the networks. This legislation should be reviewed to ensure that it is
sufficiently broad or, alternatively, these provisions should be
superseded by more general legislation.
7.3.6
The model that should serve as the beginning of an examination of
Botswana legislation in relation to cyber-crime is the Council of Europe
Convention on Cybercrime,48 which came into force on 1 July 2004.
Thirty-one countries, including South Africa, have signed the
Convention; seven have ratified it. The Convention itself does not create
substantive criminal law offences or set out detailed legal procedures. It
deals with offences committed through the use of telecommunications
networks, e.g., the Internet, such as illegal money transactions, offering
illegal services, violations of copyright, and offences that violate human
dignity and the protection of minors (see discussion, below, relating to
inappropriate content). The Convention calls for the criminalisation of
certain offences relating to computers, the adoption of procedural
powers to investigate and prosecute cyber-crime, and the promotion of
international cooperation through mutual legal assistance and
extradition.
7.3.7
Domestic national legislation will be required to fully implement the
Convention and the Convention does raise a number of issues that would
require careful consideration and analysis before legislation is drafted.
For example, the Convention requires mutual assistance among
jurisdictions, a matter that is both laudable and necessary for effective
enforcement in a globalised information economy. In particular,
ratification of the Convention implies a requirement to ensure intercept
capability in the domestic and international infrastructure, and search
and seizure provisions that would allow for production orders and data
preservation orders (discussed at greater length, below, dealing with
“lawful access”). There are criticisms, however, that the Convention
provisions might require assistance to investigate behaviour that is not
criminal in the country being requested to cooperate.
7.3.8
The Australian Cybercrimes Act of 2001, for example, implements some
provisions of the Convention following a review and creation of a Model
Criminal Code. The Act creates offences for unauthorised access,
48
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