DiscussionResponse

On ‘cyber trafficking’ and the protection of its victims

‘Cyber trafficking’ has become a buzzword in scientific and policy discussions related to human trafficking. However, as has been noted elsewhere, the term is far from being used in a uniform way. In her recent post, Sabine Witting discusses the case of trafficking that is exclusively committed online. In my view, ‘cyber trafficking’ is a much more wide-spread phenomenon than what her article seems to imply, occurring within many cases of ‘traditional’ trafficking. In the following, I will clarify my understanding of ‘cyber trafficking’ and I will argue that the term itself has no independent legal value, because even the very extreme example used by Sabine Witting falls under the trafficking definition. I will then re-examine the current definition of human trafficking, arguing contra Witting that even actions which are performed exclusively online can fall within the definition of human trafficking as articulated in the Palermo Protocol. More importantly, in my view, the focus should rather lie on victim protection and how it can be adapted to this new modus operandi of traffickers, for example by the use of ‘new’ technologies for victim identification, protection and support.

What is ‘cyber’ trafficking?

The term ‘cyber trafficking’ is used in an inconsistent way throughout the literature. However, simply put, the prefix ‘cyber’ essentially denotes everything ‘relating to, or involving computers or computer networks (such as the Internet)’. Therefore, ‘cyber trafficking’ should essentially be understood as human trafficking that is committed with the help of computer networks. Since trafficking is a crime, ‘cyber’ trafficking is not only covered by the respective international anti-trafficking instruments such as the 2000 ‘Palermo Protocol’ and the 2005 Council of Europe Convention on Action against Trafficking in Human Beings, but it also falls under the 2001 Council of Europe Convention on Cybercrime, the first international treaty on crimes committed via the internet.

There are many ways human trafficking becomes ‘cyber’: Traffickers may use online chatrooms, social media, online employment agencies or forged immigration assistance websites to recruit potential victims. They might use online platforms (be they ‘publicly’ accessible or in a darknet) to offer the services of their victims and connect them with clients and customers. These services range from forced prostitution, child pornography, mail-order brides, forced labour to the vending of babies or human organs. The payment for these services can also be made online with cryptocurrencies such as Bitcoin. Furthermore, traffickers might use Internet technology to control their victims, for example with cell phones or webcams.

Each of the three cumulative elements of the trafficking definition can thus be committed in a ‘cyber’ way: the recruitment or the transportation and the offering of the victims (the ‘action’ element), the use of coercion and threat, fraud and deception (the ‘means’ element), and even the actual exploitation (the ‘purpose’ element) can all take place with the help of the Internet. The best-known example of ‘cyber’ exploitation is the so-called cybersex industry in the Philippines, where children are allegedly forced to perform sexual acts in front of web cameras, sometimes with the possibility for the ‘consumers’ to give directions.

These examples indicate that the sharp distinction between ‘cyber’ trafficking and ‘traditional (offline) trafficking’ that Sabine Witting seems to imply in her article does not correspond to the reality of how human trafficking is performed nowadays. Indeed, most acts of trafficking are committed with the help of the Internet, therefore making ‘cyber’ trafficking a widespread phenomenon. In contrast, pure ‘offline’ trafficking seems to have become the exception.

This observation naturally raises the question whether acts that are performed not only with the help of ‘new technologies’, but solely through them, can be considered to fall within the definition of human trafficking.

‘Cyber’ exploitation, or: is there a requirement of movement?

This is why Sabine Witting, in her blog post, raises a definitional question: Can a person who has been both recruited and exploited online be considered a victim of human trafficking under the definition of the Palermo Protocol, even though he or she never left the spot in front of the computer? As Witting rightly points out, the central question here is the one of movement: If, in order for the crime to meet the definition of trafficking, the victim must have (been) moved from one place to another, some cases of ‘cyber’ exploitation might not be qualified as trafficking, because the victim might have never moved out of his or her own house and was always only in front of the computer. Sabine Witting argues that movement, in the sense of geographical dislocation, is a necessary condition for the offense of human trafficking. This would mean that ‘cyber’ trafficking (or more precisely, the special example of exploitation in front of a computer) does not constitute trafficking. To fill this legal vacuum, Witting proposes to understand the element of movement as means of removing victims from their familiar environment. With this creative interpretation, controlling victims via the internet and using psychological methods to isolate them, might also be considered as removing them from their familiar environment and therefore there would have been ‘movement’.

Besides the fact that the case cited (exploitation solely in front of the victim’s own computer at home) is an extreme and somewhat constructed example, from a legal point, the assumption that movement is a conditio sine qua non has no basis in international law and doctrine. To support her argument, Witting argues that if a family offers her child to be sexually exploited at home, by welcoming clients to the house to sexually abuse the child, nobody would think of laying charges of human trafficking against the family, but rather charge them with child prostitution or similar offences. Wittings claim rests on shaky ground, especially because the mere fact that ‘nobody would think of laying charges of human trafficking’ is not a legal argument at all. Moreover, at least two additional legal arguments speak against her claim:

  • First, from a grammatical perspective, the ‘action element’ of the Palermo definition does not even contain the word ‘movement’, but refers to ‘recruitment, transportation, transfer, harbouring or receipt of persons’.
  • Second, the definition is drafted in alternative terms, clearly indicated by the word ‘or’. This has been supported by several international bodies such as the OHCHR, cited by Witting herself, or the drafters of the European Convention against Trafficking, to name just a few. Also, legal doctrine supports this interpretation.

Therefore, in a case like the one cited by Witting, the element of ‘harbouring’ would be fulfilled and therefore the act may be qualified as trafficking if the other elements of the definitions are met. This makes it clear that the term ‘cyber trafficking’ has no independent legal significance, because even this very extreme example falls under the ‘traditional’ definition of trafficking.

Why is it nevertheless crucial to determine whether ‘cyber’ exploitation falls within the definition of human trafficking or not? The answer lies in the peculiarities of international anti-trafficking law, and the unprecedented level that international law affords to victims of human trafficking, but not to victims of cybercriminality. I will use the remaining paragraphs to draw attention to the very important question of victim protection under international law.

A unique level of victim protection in trafficking cases

Like no other international law enforcement instrument, international anti-trafficking law obliges States to take proactive measures in favour of (actual and potential) victims of human trafficking. For example, Article 6 of the Palermo Protocol requires States to provide assistance and protection to victims, which includes protection of privacy, identity and physical safety as well as measures to provide for the physical, psychological and social recovery of the victim, such as appropriate housing, counselling and information, medical, psychological and material assistance and employment, educational and training opportunities. There has been legitimate criticism because of the vague wording of these provisions, however, these findings do not apply in the European context: The Council of Europe Convention on Action against Trafficking in Human Beings, which is also open for ratification by non-members states of the Council of Europe, explicitly pursues a victim-centred and human rights-based approach and frames the duties to protect and support victims in a much stronger language. The Convention contains duties to detect and identify victims as well as to grant them a ‘recovery and reflection period’, both being quite unique duties in comparison to other law enforcement instruments.

Furthermore, the European Court of Human Rights has recognized vast positive obligations of States towards victims of human trafficking under Article 4 (prohibition of slavery and forced labour) of the European Convention on Human Rights. These obligations also serve as an inspiration for other monitoring bodies throughout the world. Most of them have also been recognised by the UN Human Rights Treaty Bodies. Positive obligations under Article 4 ECHR include: an obligation to penalize and prosecute trafficking effectively, an obligation to take operational measures to protect (potential) victims of trafficking, and a procedural obligation to investigate situations of potential trafficking. Furthermore, in recent judgements, the Court increasingly draws explicitly on the victim protection provisions of the Council of Europe Convention on Action against Trafficking such as the duty to identify victims (see case of L.E. v Greece and J. and others v Austria), the granting of a recovery and reflection period (see case of Chowdury and others v Greece) and the duty to support victims (see again case of J. and others v Austria), thereby recognising these duties as human rights obligations as well.

In comparison to any other law enforcement instrument, the international anti-trafficking law makes (potential) victims of trafficking probably the victim group with the most extensive range of individual rights, at least in Europe. No other group of victims of a particular crime has such a broad range of rights, be it victims of violence against women, of child sexual exploitation or of cybercrime.

If ‘cyber trafficking’ would – as a consequence of a restrictive interpretation of the definition – fall only under the European Cybercrime Convention, its victims would not receive any specific individual measure of protection or support and States would not be obliged to identify them as victims of cybercrime, and to grant them for example a recovery and reflection period or provide for adequate housing or legal counselling.

The need for victim-centred research

However, even though ‘cyber’ trafficking has increasingly become a topical issue in research on trafficking and cybercrime, there is a surprising lack of research about victim protection in ‘cyber’ trafficking cases. Indeed, to date, the research centres mainly on questions of law enforcement such as strategies to combat trafficking online or the use of digital evidence in court cases. Yet, victim protection is as important for the combat of human trafficking as is prosecution, not least because often the whole criminal case rests on the victims’ testimonies and it is well known that victims do not tend to cooperate with the authorities if they are not adequately protected and supported. The need for empirical as well as legal research is therefore pressing: How can ‘cyber’ victims be detected and identified? How to protect and support these victims? Do they have other needs than victims of ‘offline’ trafficking? If the trafficking itself takes place online, is there a possibility for online victim protection as well? From a victim-centred, human rights-based view, these should be some of the guiding questions for future research.

 

Nula Frei is a senior researcher and lecturer at the Institute of European Law at University of Fribourg. Her doctoral thesis, which will be published by Nomos Verlag by the end of 2017, focused on the protection of victims of trafficking in asylum procedures.

Cite as: Nula Frei, “On ‘cyber trafficking’ and the protection of its victims”, Völkerrechtsblog, 26 July 2017, doi: 10.17176/20170731-180154.

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1 Comment

  1. Sabine Witting
    30 July, 2017 at 15:48 — Reply

    Dear Nula,

    Thank you very much for a critical and constructive response to my article. Stressing a victim centred and human rights based approach in the field of human trafficking, and criminal law in general, is key to push for high protection standards and service delivery for victims of Trafficking in Persons.

    I would like to stress that my perspective on the issue is indeed rather technical, and is originated in current cases I am dealing with in the Southern African region. This also implies that the case I am discussing is not ‘constructed’ or simply ‘extreme’: it is the reality on the ground. Having said that, my indeed technical analysis of the issue is a response to these cases, and as much as I would prefer to award all victims of ‘cyber’trafficking the victim protection standards you mention, we have to be realistic how courts will assess the issue of ‘cyber’ trafficking and movement.

    Regarding the wording of the action element, and the argument that the term ‘movement’ does not occur in the catalogue of actions: I would argue that from a semantic perspective, all words imply movement (e.g. transport, transfer, receipt, harbour). In particular with regards to ‘harbour’, the semantics of this term suggest that one can only harbour something which was received from somewhere, and typically goes somewhere afterwards – hence, the ‘good’ has been moved in the process. Same applies to the term ‘receipt’.

    Further, it is absolutely correct that the action elements are to be interpreted as alternative, not cumulative options. However, the point I would like to make is that the objective behind splitting up the human trafficking offence in many sub-actions, is due to the fact that human trafficking is embedded in organised crime structures, hence the need to ensure that everybody contributing to the chain of human trafficking is considered as principal perpetrator and not as mere accessory.

    As a last remark, and now from the perspective of criminal theory, there is a reason why law makers all over the world decided to come up with an offence called ‘human trafficking’, and did not deem the legal framework criminalising the three subcomponents as sufficient (criminal offences responding to sub-components are typically kidnapping, fraud, entrapment, and all forms of exploitation such as forced labour, forced prostitution, child abuse, child pornography etc). Hence, we need to ask ourselves: what is the reason for the increased level of unlawfulness, which resulted in establishing the human trafficking offence in the first place? My response to that is the increased level of dependence, isolation and helplessness on the victim’s side, caused by the initial removal of the victim from his or her familiar environment.

    As conclusion, I would like to stress again that the objective of above arguments is not to diminish the protection standard for victims of human trafficking. As much as I would support your argument on a policy level, it is important to also respond to the more technical criminal law issues being raised in courts all over the world.

    Thank you!

    Sabine

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