51. This provision aims to protect the right of privacy of data communication. The offence represents the same violation of the privacy of communications as traditional tapping and recording of oral telephone conversations between persons. The right to privacy of correspondence is enshrined in Article 8 of the European Convention on Human Rights. The offence established under Article 3 applies this principle to all forms of electronic data transfer, whether by telephone, fax, e-mail or file transfer.
52. The text of the provision has been mainly taken from the offence of ‘unauthorised interception’ contained in Recommendation (89) 9. In the present Convention it has been made clear that the communications involved concern “transmissions of computer data” as well as electromagnetic radiation, under the circumstances as explained below.
53. Interception by ‘technical means’ relates to listening to, monitoring or surveillance of the content of communications, to the procuring of the content of data either directly, through access and use of the computer system, or indirectly, through the use of electronic eavesdropping or tapping devices. Interception may also involve recording. Technical means includes technical devices fixed to transmission lines as well as devices to collect and record wireless communications. They may include the use of software, passwords and codes. The requirement of using technical means is a restrictive qualification to avoid over-criminalisation.
54. The offence applies to ‘non-public’ transmissions of computer data. The term ‘non-public’ qualifies the nature of the transmission (communication) process and not the nature of the data transmitted. The data communicated may be publicly available information, but the parties wish to communicate confidentially. Or data may be kept secret for commercial purposes until the service is paid, as in Pay-TV. Therefore, the term ‘non-public’ does not per se exclude communications via public networks. Communications of employees, whether or not for business purposes, which constitute “non-public transmissions of computer data” are also protected against interception without right under Article 3 (see e.g. ECHR Judgement in Halford v. UK case, 25 June 1997, 20605/92).
55. The communication in the form of transmission of computer data can take place inside a single computer system (flowing from CPU to screen or printer, for example), between two computer systems belonging to the same person, two computers communicating with one another, or a computer and a person (e.g. through the keyboard). Nonetheless, Parties may require as an additional element that the communication be transmitted between computer systems remotely connected.
56. It should be noted that the fact that the notion of ‘computer system’ may also encompass radio connections does not mean that a Party is under an obligation to criminalise the interception of any radio transmission which, even though ‘non-public’, takes place in a relatively open and easily accessible manner and therefore can be intercepted, for example by radio amateurs.
57. The creation of an offence in relation to ‘electromagnetic emissions’ will ensure a more comprehensive scope. Electromagnetic emissions may be emitted by a computer during its operation. Such emissions are not considered as ‘data’ according to the definition provided in Article 1. However, data can be reconstructed from such emissions. Therefore, the interception of data from electromagnetic emissions from a computer system is included as an offence under this provision.
58. For criminal liability to attach, the illegal interception must be committed “intentionally”, and “without right”. The act is justified, for example, if the intercepting person has the right to do so, if he acts on the instructions or by authorisation of the participants of the transmission (including authorised testing or protection activities agreed to by the participants), or if surveillance is lawfully authorised in the interests of national security or the detection of offences by investigating authorities. It was also understood that the use of common commercial practices, such as employing ‘cookies’, is not intended to be criminalised as such, as not being an interception “without right”. With respect to non-public communications of employees protected under Article 3 (see above paragraph 54), domestic law may provide a ground for legitimate interception of such communications. Under Article 3, interception in such circumstances would be considered as undertaken “with right”.
59. In some countries, interception may be closely related to the offence of unauthorised access to a computer system. In order to ensure consistency of the prohibition and application of the law, countries that require dishonest intent, or that the offence be committed in relation to a computer system that is connected to another computer system in accordance with Article 2, may also require similar qualifying elements to attach criminal liability in this article. These elements should be interpreted and applied in conjunction with the other elements of the offence, such as “intentionally” and “without right”.