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Reply to Recommendation | Doc. 13674 | 24 January 2015
Improving user protection and security in cyberspace
1. The Committee of Ministers has carefully
examined Parliamentary Assembly Recommendation 2041 (2014) entitled
“Improving user protection and security in cyberspace”. It has communicated
it to the relevant bodies of the Council of Europe for information
and possible comments. The Committee of Ministers welcomes the efforts
of the Parliamentary Assembly to strengthen human rights and the
rule of law in cyberspace and the important role that it attributes
to the Convention on Cybercrime (ETS No. 185) and the Convention
for the Protection of Individuals with regard to Automatic Processing
of Personal Data (ETS No. 108, hereafter “Convention 108”) in this
respect. Moreover, in respect of user protection on the Internet,
the Committee of Ministers draws attention to the fact that on 16
April 2014, it adopted Recommendation CM/Rec(2014)6 to member States
on a Guide to human rights for Internet users. The Committee also
underlines the importance of other Council of Europe Internet governance
standards that contribute to an inclusive, multi-stakeholder, collaborative
and open Internet governance framework and recognises that the Internet
is a global resource which should be managed in the public interest.
2. With respect to the Assembly’s proposal to consider the feasibility
of drafting an additional protocol to the Convention on Cybercrime
regarding serious violations of fundamental rights of users of online
services (paragraph 2.1 of the recommendation), the Committee of
Ministers notes that the Convention already has the objective of
protecting society and individuals against cybercrime, including
against offences against the confidentiality, integrity and availability
of computer data and systems. The Cybercrime Convention Committee (T-CY)
has, moreover, adopted a number of Guidance Notes – representing
the common understanding of the Parties – aimed at applying the
existing provisions of the Cybercrime Convention to new cybercrime phenomena.
For these reasons, the Committee of Ministers sees no need presently
to initiate work on an additional protocol. It recalls, in addition,
that the fundamental right to respect for private life is protected
under Article 8 of the European Convention on Human Rights, as well
as under Convention 108 and its Additional Protocol.
3. On the question whether the European Convention on Mutual
Assistance in Criminal Matters (ETS No. 30) needs to be updated
in order to deal with mutual assistance concerning transnational
cybercrime and cyber evidence (paragraph 2.2 of the recommendation),
the Committee of Ministers recalls that Chapter III of the Convention
on Cybercrime is aimed at international co-operation in matters
related to electronic evidence. Given the transnational nature of
electronic evidence, the Convention on Cybercrime would seem the
most suitable instrument to deal with this matter given that Parties,
signatories and States invited to accede include an increasing number
of non-member States of the Council of Europe. The Committee of
Ministers notes also that the T-CY, in co-operation with the Committee
of Experts on the Operation of European Conventions on Co-operation
in Criminal Matters (PC-OC), will continue assessing the effectiveness
of the international co-operation provisions of the Convention on
Cybercrime and that this assessment is expected to result in a range of
proposals to render mutual legal assistance regarding electronic
evidence more efficient.
4. The Parliamentary Assembly suggests that the Committee of
Ministers undertake work relating to the European Convention on
the Legal Protection of Services based on, or consisting of, Conditional
Access (ETS No. 178) (paragraph 2.3 of the recommendation). The
Committee of Ministers notes that the Steering Committee on Media
and Information Society (CDMSI) is, pursuant to the decisions of
the Committee of Ministers in relation to the review of Council
of Europe conventions, the reference point for Convention No. 178. Therefore,
the CDMSI, in accordance with its terms of reference, may in the
future consider work in this regard subject to available resources
and bearing in mind priorities.
5. On the issue of assistance to member States in the implementation
of the Convention on Cybercrime and Convention 108 (paragraph 2.4
of the recommendation), the Committee of Ministers underlines the importance
of capacity building. It notes that the Ordinary Budget resources
of the Council of Europe are limited but considerable extra-budgetary
resources have been mobilised by the Council of Europe for programmes
on cybercrime funded by voluntary contributions and joint projects
with the European Union. Furthermore, the Cybercrime Programme Office
of the Council of Europe (C-PROC) in Bucharest, Romania, became operational
in April 2014. It provides the Council of Europe with the infrastructure
to support countries worldwide in an effective manner through capacity
building programmes. With respect to Convention 108, the Secretariat
General is working closely with States Parties to improve the framework
of data protection at national level for member States that so request.
6. The Committee of Ministers agrees that the modernisation
exercise of Convention 108 be completed (paragraph 2.5 of the recommendation)
as a very important task which should be given high priority with
a view to securing a high level of protection of individuals with
regard to processing of personal data in the digital era. It notes
that the third and final meeting of the Ad hoc Committee on Data
Protection (CAHDATA), which has been given the task to update the
convention, took place in December 2014. It acknowledges the importance of
taking into account the ongoing revision of the data protection
framework at the European Union level.
7. The Assembly recommends the Committee of Ministers to support
and co-ordinate a pan-European approach to the globalisation of
the Internet Corporation for Assigned Names and Numbers (ICANN)
and its Internet Assigned Numbers Authority (IANA), as outlined
in the Montevideo Statement on the Future of Internet Co-operation
of 7 October 2013 (paragraph 2.6 of the recommendation). In this
context, the Committee underlines the need for Council of Europe
member States to be guided by the standards and principles of the Council
of Europe, in particular the Declaration by the Committee of Ministers
on Internet Governance Principles and Recommendation CM/Rec(2011)8
of the Committee of Ministers to member States on the protection
and promotion of the universality, integrity and openness of the
Internet. The Committee recalls also its Declaration on enhanced
participation of member States in Internet governance matters –
Governmental Advisory Committee (GAC) of the ICANN. In this context,
it would furthermore underline the importance of the Internet Governance
Strategy (2012-2015).
8. With respect to the proposal that observer States be invited
to work actively with the Council of Europe towards improving user
protection and security in cyberspace and to set up joint initiatives
with the Council of Europe in this respect (paragraph 2.7 of the
recommendation), the Committee of Minsters notes that Japan and
the USA, which are already Parties to the Convention on Cybercrime,
are represented in the Bureau of the T-CY, are providing voluntary
contributions for capacity building programmes and have engaged
in many joint activities with the Council of Europe in different
regions of the world. Moreover, Canada is a signatory to the Convention
and Mexico has been invited to accede to it. As for Convention 108,
these States could ask to be invited to accede to the Convention.
Canada and the United States already participate as observers in
the Consultative Committee of Convention 108 (T-PD).
9. On the issue of a possible invitation to the European Union
to accede to the Convention on Cybercrime as well as to the Convention
108 (paragraph 2.8 of the recommendation), the Committee of Ministers underlines
that the European Union and the Council of Europe already enjoy
excellent co-operation on cybercrime matters. Accession by the European
Union to the Convention on Cybercrime is not foreseen in the treaty
in its present form; an amendment to the Convention would therefore
be required. The feasibility and necessity of such an amendment
would require further analysis. As far as Convention 108 is concerned, accession
by the European Union is one of the issues under consideration in
the modernisation exercise.
10. Finally, on the question of mass violations of the right
to privacy (paragraph 2.9 of the recommendation), the Committee
of Ministers informs the Assembly that in the context of the follow-up
to the Council of Europe Conference of Ministers responsible for
Media and Information Society (Belgrade, 7-8 November 2013), it decided
to instruct the CDMSI “to examine closely, in the light of the requirements
of the European Convention on Human Rights, the question of gathering
and processing of electronic communications data on individuals by
security agencies, with a view, as appropriate, to making proposals
for further action”.