In done in Victoria. In the Belgian Yahoo!

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In done in Victoria. In the Belgian Yahoo!

In the European Convention of Cyber Crime(ECCC), most of the article is started with the phrase of ‘each party shall establish jurisdiction over any offence under Art.2 to 11 when the offence is committed in its territory’. If the parties that attacking a computer system, or the attacked system and the victim system is within its territory, then the country can claimed territorial jurisdiction.Another jurisdiction is useful when the offence was committed on shipor aircraft.This convention allows countries to have a reservation to the jurisdictional ground laid down in (b) to (d). When facing the principle of extradite or prosecute, the requirements for country to refuse to extradite the alleged offender is to have the legal ability to undertake the investigation and proceedings domestically or the offence is also under the laws of the state in which it was committed. Yahoo! Inc v. LICRA. In French court assumed jurisdiction over Yahoo and ordered it to remove a web pages that showing material which is illegal in France. Next, a British court held a British subject to be liable for posting obscene photograph on an American web server. In the case of Gutnick v Dow Jones, the respondent an Australian businessman, brought libel proceeding over an article published online by the appellant that alleged that respondent was involved in a money laundering. The case is brought in the state court of Victoria, but the appellant argues that the case should be heard in New Jersey, where the article was uploaded. The issue is whether the Victoria court was appropriate to determine the action. High Court of Australia make a conclusion that the respondent has the right to filled an action in Victoria by applying the principle of defamation as the internet publication made against respondent is done in Victoria. In the Belgian Yahoo! Case, the supreme court has provided a broad interpretation of concept of ‘electronic communication service provider’. This case the prosecutor in order to find out the individuals who used Yahoo! email account to commit fraudulent activity in Belgium requested Yahoo! to identify the persons. Belgian’s Criminal Procedure Code allow the public prosecutor to request a network provider to cooperate and obtain the identification of an individuals behind an ICT application, refusal will lead to a fine of maximum €10,000. Supreme Court reversed the Court of Appeal decision that Art.46 bis of the Code of Criminal Procedure does not applicable to Yahoo! Company as it categories as electronic communication service provider. The rationale was the criminal law must be interpreted freely. The concept of electronic communication service provider should not essential to follow the meaning implemented by the Belgian Electronic Communication Act which is given by EU Telecom Package.In ECCC absence of the specific jurisdiction regarding territorial matter, the general jurisdiction provision apply. Belgian and German has the same provision as Dutch Criminal Code. Art.2 of the above legislation given the code is applicable to anyone guilty of any offence committed in Netherlands. Especially to the countries that lack of specific cybercrime jurisdiction clause about the territorial matter, they are able to made amendment to specify their domestic laws by insertion of the phrase ‘where the act take place’. Jurisdiction over cyber crimes is very difficult to be established. In order for the convention to be effective, Section 3 deals with criminal jurisdiction over cyber crimes. The convention encourage countries to consult among themselves in order to to facilitate the efficiency of the fairness of the proceeding, prevent unnecessary inconvenience for witnesses and duplication of effort. Nationality of the perpetrator is the factor of jurisdiction in cybercrime. The cybercrime convention requires parties to establish jurisdiction, Art.22(1)(d). Germany has a general jurisdiction clause, it has jurisdiction over German national which committed a crime outside the territory, or is not subject to criminal jurisdiction at the territory that the crime was committed. Belgium also have a similar provision on the issue of nationality, but, it allows to prosecute foreigners who have aided or abetted a crime committed by a Belgian national outside of its territory. Netherlands has some specific provision related cybercrime jurisdiction. For forgery, the offence committed by the Dutch employees abroad, or any employees of international organizations located in Netherlands, the act is punishable in the country where it is committed. For child pornography offence only can be punished under Dutch law if the accused was Dutch national. If a person became a Dutch national after committed the crime, jurisdiction of Netherlands also can be applied.  Regarding the victim nationality of cyber crime, Germany has a very general claim. Germany has the jurisdiction against their national if the crime is punishable at the country that the offence is committed or even the offence does not fall under the jurisdiction of the respective territory. For Belgium, a crime against a Belgian national is fall under the Belgian law if the act is punishable with a penalty of at least 5 years of imprisonment in the country where the offence is committed. There are different degree of protection afforded by national laws of EU member states. All EU member states have enacted laws prohibiting some form of unauthorised access to computer and computer network except Austria. Although most EU member states have statute regarding unauthorised access to a computer, but they still need to strengthen the law to combat further crime. In Germany and Netherlands the laws protect only ‘secure system’ which some effort has been made to inhibit open access. In Spain, criminal sanction only applied when there are some damage must occur to the system. For the fraudulent acts, all the EU member state does not have statutes specifically enacted to prevent computer fraud, they are criminally sanction fraudulent acts in general terms. Germany, Finland, France, Greece have has national law therefore no difficulty to cover the computer forgery. In this technologically advance world, Austria, Belgium and Italy, they are lack of regulation on the subject matter. The protection of traditional forgery statute is limited to ‘visually readable’ document which is not including the electronic and computer stored data.Cyber crime mostly committed across borders, and many broad jurisdiction was given by various country. However, at least the country has the jurisdiction to prosecute and extradite the accused. For example, if a German national uses a computer in Netherlands to hack a computer in Belgium, at least these three country will be able to claim the jurisdiction, and it is possible for other countries to claim jurisdiction if the data or information has been leaked from the particular country. However, there is some absent of guideline to be provide by the ECOCC.  

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