Dutch draft bill aims to expand cybercrime enforcement

Dutch Justice Minister Ernst Hirsch Ballin published a draft bill to strengthen the government’s fight against cybercrime yesterday. The bill is aimed at three changes:
 

1. The public prosecutor will be independently entitled to order an ISP to remove certain information if that is necessary to terminate or prevent a criminal offence taking place. This way approval by the investigation judge will no longer be required, as is now still the case (art. 54a Sr. jo. art. 125p Sv). The Public Prosecutor’s order may be aggravated by a penalty (Article 1258q Sv.)
   According to given explanation, the bill intends to give the public prosecutor these new powers to use in case an ISP refuses to voluntarily remove clearly unlawful or criminal information, following a Notice and Takedown request.
2. It will be an offense to secretly eavesdrop or record public conversations with technical means. This implies a widening of the current ban on tapping or eavesdropping, since that is only limited to calls between other people. The new ban also includes conversations where the people themselves participate (art. 139b Sr.).
3. The taping, duplicating or interception of non-public information or non-public data transmission, is prohibited (art. 139c Sr.). Owning, providing or disclosing such data, is also prohibited (Art. 139th Sr) These changes very likely come from the Manon Thomas case, where private photo’s and movies of the Dutch known television presenter were her neighbour had taken from her home computer and published online on YouTube and MSN.

Internetprovider XS4All criticized the first adjustment. It fears for censorship, because of the public prosecution’s ability to force internet providers to take down content from web sites without a prior court approval.

Dutch Digital Rights Organization Bits of Freedom also fears for government censorship and points out that a ‘criminal offense’ is too broad a concept. Offenses might also include copyright issues and insults.

Although the vast majority of the Dutch Copyright Act consists of civil law provisions, there are some violations, especially those deliberately committed that can be enforced under criminal law. However, the minister has already made clear that copyright is preferably enforced by civil law. Criminal offenses mainly focus on the import and export of counterfeit products.

The last known Dutch case where criminal offenses took place within copyright law, was in the Manon Thomas case. For example, the cases against BitTorrent platform The Pirate Bay in The Netherlands plays entirety within civil law. That however was not the case in Sweden.

The Minister invites everyone to give relevant substantive feedback via the Dutch government’s internet consultation website.