Octopus Cybercrime Community

Nauru is in the process of revising its key legislation, including the acts pertaining to cybercrime and electronic evidence. The key legislation on cybercrime includes the Cybercrime Act 2015 (CA) and the Communications and Broadcasting Act 2018 (CBA). The legislation covers:

the key terminology defined in the Budapest Convention on Cybercrime, and a few additional terms (e.g. access, critical infrastructure, device, intercept/interception);

substantive provisions: illegal access (CA 2015, Art. 6); illegal interception (CA 2015, Art. 7; CBA 2018, Art. 49(2), Art. 70(2)); illegal data interference (CA 2015, Art. 8; CBA 2018, Art. 71);

The Cybercrime Act 2015 has some limitations, for example, Art. 6 – illegal access is limited in scope to known protected computers that are part of the state or communications infrastructure;

Data protection is addressed in limited capacity, from the perspective of privacy (in Nauru legislation can be found under the label of “confidentiality”). However, the government has shown interest in developing legislation in this area.

The Copyright Act 2019 introduced offences related to infringement of copyright and related rights.

In 2018, Nauru Police Force officials with cooperation from the Australian Federal Police developed the Cyber Safety Pacifica campaign that seeks to educate the local population on the dangers of the internet. There have been reports that Nauru has been blocking popular websites as a result.

The Cybercrime Act 2015 criminalizes several offenses that BC and its additional protocol also cover:

• Illegal access (Part I, art. 6)
• Illegal Interception (Part I, art. 7)
• Illegal data interference (part I, art. 8)
• Illegal system interference (Part I, art. 10)
• Making, selling, distributing or possessing software or device for committing a crime (Part I, art. 11)
• Computer-related forgery (part I, art. 12)
• Computer-related fraud (Part I, art. 13)
• Child pornography (Part I, art. 14)
• Solicitation of children (Part I, art. 15)
• However, other offenses are also covered, that fall outside the scope of the Budapest Convention:
• Data espionage (Part I, art. 9)
• Publishing of indecent or obscene information or matter in electronic form (Part I, art. 16)
• Identity- related crimes (Part I, art. 17)
• Spam (Part I, art. 18)
• Disclosure of details of an investigation (part I, art. 19)
• Failure to permit assistance (Part I, art. 20)
• Sending of publishing information or material though electronic communication (Part I, art. 21)
• Harassment utilising means of electronic communication (Part I, art. 22)
• Racial and religious offences (Part I, art. 23)

Communications and Broadcasting Act 2018 also covers aspects of communication interference:

• Prohibition on interfering or modification of communication (art 71 Prohibition on interfering or modification of communication)

The Cybercrime Act 2015 addresses most of the Budapest Convention on Cybercrime’s procedural powers:Search and seizure (Part 3, art. 24)

• Assistance (Part 3, art. 25)
• Production order (part 3, art. 26)
• Expedited preservation (Part 3, art. 27)
• Partial disclosure of traffic data (Part 3, art. 28)
• Collection of traffic data (Part 3, art. 29)
• Interception of content data (Part 3, art. 30)

Part II — Protection of Fundamental Rights and Freedoms (Articles 3-15) of the Constitution of Nauru safeguards the fundamental rights and freedoms of the citizens.

According to a USDOJ report on Human Rights Approach, the Cybercrime Act law in Nauru prohibits […] practices related to child pornography. The cybercrime law outlaws the electronic publication and transmission of child pornography.

Communications and Broadcasting Act 2018 introduces safeguards on protection of subscriber’s information and communication:

• Confidentiality of subscribers’ information (Part 8, art. 48)
• Confidentiality of subscriber communications (Part 8, art. 49)http://ronlaw.gov.nr/nauru_lpms/index.php/act/view/1270

Constitution of Nauru (1968), Constitution of Nauru (Parliamentary Amendments) Act 2009, Constitution (Amendment) Act 2018;

Cybercrime Act 2015;

Crimes Act (2016), Crimes (Amendment) Act 10 of 2020 and Crimes (Amendment) No. 2 Act 29 of 2020;

Child Protection and Welfare Act 2016;

Civil Evidence Act 1972;

Customs Act 2014;

Criminal Procedure Act 1972 (consolidated in 2012), Criminal Procedure (Forms) Rules 1972, Criminal Procedure (Amendment) Act No. 20 of 2016, Criminal Procedure (Amendment) Act No 11 of 2020, Criminal Procedure (Amendment) No 2 Act No 21 of 2020, Criminal Procedure (Criminal Convictions) Regulations 2020;

Proceeds of Crime Act 2004 (2011);

Copyright Act 2019;

Extradition Act 1973 (2011);

Communications and Broadcasting Act 2018;

Mutual Assistance in Criminal Matters Act 2004;

Anti-Money Laundering Act 2008 and Anti-Money Laundering (Amendment) Act 2018;

Counter Terrorism and Transnational Organised Crime Act 2004 (2011) and Counter Terrorism and Transnational Organised Crime (Amendment) Act 2020;

Legal Framework

Mutual Assistance in Criminal Matters Act 2004 provides the legal provision for mutual international assistance in criminal matters:

• Provides procedures for mutual legal assistance requests that would apply in the absence of applicable international agreements.
• Grounds for refusal in the Act are consistent with permitted grounds for refusal under the Budapest Convention, though Nauru is not obliged under the Act to communicate reasons for refusal or postponement to the request country.
• Provides a procedure by which foreign authorities can make requests to judicial authorities in Nauru.

According to Global Index of Organised Crime, chapter 7 - Criminal justice and security, law enforcement in Nauru is heavily reliant on international assistance from other Pacific island states, Australia and New Zealand for major criminal investigations and, as such, these cooperative efforts provide a safety net.

Nauru is part of these treaties:

• UN Convention against Transnational Organized Crime and its three protocols on migrant smuggling, trafficking in persons and the illicit arms trade.
• UN Convention against Corruption (signed in 2012).
• 1988 UN Convention on Narcotic Drugs and Psychotropic Substances (signed in 2012).
• Convention on the Rights of the Child (signed in 1994).
• Taiwan and Nauru Signed the Treaty on Mutual Legal Assistance in Criminal Matters on August 7, 2019.

Nauru is a beneficiary of several regional or global initiatives or projects:

Pacific Island Law Officers Network (PILON) Cybercrime Workshop, implemented by Australia-Attorney General’s Department.

Cyber Safety Pasifika (CSP), implemented by Australia – Australian Federal Police.

GLACY+ project, implemented by Council of Europe.

Competent authorities and channels

Ministry of Justice is the competent authority to send and receive mutual assistance requests under the Mutual Assistance in Criminal Matters Act 2004.

Pacific Cyber Security Operational Network (PaCSON, 2017): Nauru is a member. The PaCSON was set up by the Australian Government to assist the Indo-Pacific region with the development of capacities to address cyber threats, strengthen cyber security and combat cybercrime through the Cyber and Critical Tech Cooperation Program.

Commonwealth Network of Contact Persons (CNCP): Nauru is a member of the Framework for the Commonwealth Network of Contact Persons which assists with international cooperation in criminal matters among its members as an informal network. The CNCP facilitates international cooperation in criminal cases, including on mutual legal assistance and extradition, as well as legal and practical information in this respect.

Sources and links (Practical guides, templates and best practices)