The use of the Internet

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30 THE USE OF THE INTERNET FOR TERRORIST PURPOSES 88. In the Republic of Korea, two types of criminal law can be applied to terrorist acts involving some use of the Internet. One is the general criminal code and the other is a special criminal code, established in 1986, relating to criminal acts involving information/communication. Article 90 of the Criminal Code deals with the preparation of such acts, as well as conspiracy, incitement or propaganda and provides that any person who prepares or plots for the purpose of committing crimes under article 87 of the Criminal Code (public riots, revolts or disturbances) or article 88 (homicides committed for the purpose of acts under article 87) is liable to imprisonment of three years or more. Under article 101 of the Criminal Code, any person who prepares or conspires to commit offences under articles 92 to 99 of the Criminal Code is guilty of a crime and liable to two years or more imprisonment. Article 114 of the Criminal Code relates to organizing a criminal group. Also under the special criminal code, the Government established a range of criminal offences specifically criminalizing unlawful acts targeting information-communication networks and personal information. 89. In practice, regardless of the policy approach taken, experience shows that most States adopt a multifaceted approach when dealing with the investigation and prosecution of terrorist acts, including those involving some use of the Internet. Law enforcement and prosecution agencies use whatever legislative provisions best suit the particular circumstances of the case. 90. The powers required by law enforcement agencies to effectively investigate terrorism cases are broadly similar regardless of the particular jurisdiction involved, with differences in national policies and legislation reflecting the diversity in legal systems, constitutional arrangements and other factors (e.g. cultures). 91. The area of Internet regulation and content control leaves considerable room for variations in national approaches. While the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights provide international standards pertaining to the regulation of the expression and communication of ideas, there is no comprehensive internationally binding instrument setting definitive, binding norms on what is considered appropriate Internet content or how each State should regulate Internet-related activity within its own territory. Currently, child pornography is the one area where, even in the absence of a universally binding instrument or definition, States invariably prohibit such activities. 83 In the terrorism context, however, the absence of a universally agreed definition of terrorism presents an ongoing obstacle to any internationally agreed approach to the appropriate regulation of terrorism-related activity and content over the Internet. 92. In terms of specialized judicial or evidential procedures in the terrorism field, some States have adopted specific judicial and case management procedures for terrorism cases that might apply to cases involving the use of the Internet by terrorists. When this approach is adopted, it is important that any specialized mechanisms conform fully with relevant international human rights obligations, including those related to the right to liberty and a fair trial. 83 Maura Conway, “Terrorism and Internet governance: core issues”, Disarmament Forum, vol. 3 (2007), p. 27.
C. legislation 1. Criminalization CHAPTER III. POlICy AND lEGISlATIvE FRAMEwORKS 93. As stated above, none of the universal instruments against terrorism impose an obligation on States to enact legislation specifically targeting the use of the Internet by terrorists. Accordingly, while it is therefore highly likely that most terrorism cases will involve some use of the Internet by perpetrators, it is likely that in many States, in addition to using offence provisions related to unlawful conduct specified in universal instruments, authorities will also be reliant on other criminal offence provisions under their penal codes, including inchoate offences such as conspiracy, solicitation and criminal association, in order to prosecute offenders. 94. In the present section, examples of different legislative provisions from some States are considered, with a view to identifying approaches that might provide the basis for effective criminal justice responses to different types of conduct. (a) Internet-based acts or statements supporting terrorism 95. In addition to acts associated with the commission of substantive terrorist acts (e.g. terrorist bombings), there is clear evidence that the Internet is increasingly being used by terrorists to carry out support actions such as recruiting and training members, sharing useful information, disseminating propaganda and inciting the commission of acts of terrorism. Owing to the configuration and global reach of the Internet, it is increasingly likely that these types of activities may involve different actors being physically present in different legal jurisdictions. 96. In the United Kingdom, part VI of the Terrorism Act 2000 contains several offences that can provide the basis for charging individuals who have used the Internet to support terrorist activities. 97. Section 54 of the Act makes it an offence to provide, receive or invite others to receive instruction or training in the making or use of firearms, radioactive material or related weapons, explosives or chemical, biological or nuclear weapons. 98. Section 57 makes it an offence to possess articles in circumstances that give rise to a reasonable suspicion that a person has such articles in connection with the preparation, instigation or commission of an act of terrorism. In recent years, this offence has been used to successfully prosecute several individuals who have been found in possession of items as diverse as hard drives, DVDs and instructional documents on how to make or operate items such as mortars, suicide vests and napalm. 84 For there to have been a commission of this offence, the prosecution must prove a connection between the article in question and a specific act of terrorism. There have been several 84 Susan Hemming, “The practical application of counter-terrorism legislation in England and Wales: a prosecutor’s perspective”, International Affairs, vol. 86, No. 4 (July 2010), p. 963. 31
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