51
Copyright and Neighbouring Rights Act. It may be necessary, however,
to review legislation to ensure that the full range of behaviours to be
targeted is dealt with under the appropriate legal regime. For example, in
Canada, amendments were made to the Criminal Code to deal explicitly
with exploitation of children through the dissemination of child
pornography over the Internet. Thus new provisions created crimes for:
• Internet luring, making it illegal to communicate with a child over
the internet for the purpose of committing a sexual offence against
that child;
• Transmitting (distributing) child pornography over the Internet;
• Making child pornography available by posting or offering
information on where to find it on the Internet;
• “Exporting” child pornography across national borders (this
provision fulfils Canada’s obligations under the Optional Protocol to
the United Nations Convention on the Rights of the Child, on the
Sale of Children, Child Prostitution, and Child Pornography); and
• Possessing child pornography for the purposes of transmitting,
making available or exporting.
7.3.12 In addition, the Canadian amendments provide courts with the power to
order ex parte a custodian of a computer system (e.g., an Internet
Service Provider) to remove from its server any material that could
reasonably be considered to be child pornography. In addition, a judge
may order forfeiture of any materials or equipment used in the
commission of a child pornography offence. The EU Convention on
Cybercrime (which must be operationalised through national criminal
law) also states that possession, copying and distribution of child
pornography should be penalised.
7.3.13 The European Commission against Racism and Intolerance of the
Council of Europe has also adopted a General Policy Recommendation
on combating the dissemination of racist, xenophobic and anti-Semitic
material on the Internet, which recommends inclusion of an additional
protocol in the Convention on Cybercrime.50
7.3.14 Establishing a structure or framework to deal with inappropriate content
pre-supposes that there is some acceptable definition as to what is
unacceptable, at least in certain circumstances (e.g., to minors).
Generally, reference is made as to what is considered acceptable or
unacceptable in the physical offline world. Indeed, this applies to cybercrime generally: fraud perpetrated through the Internet via e-mail should
not be treated differently as a matter of substantive criminal law and
procedure than fraud perpetrated through, for example, the mail
50
http://www/ecri.coe.int/en/08/02/06/Rec%206%20en.pdf