Cyber Crime
Offences under the Computer Misuse Act 1990
Prosecutions for cybercrime are brought under the Computer Misuse Act 1990 (CMA). The CMA does not actually define a computer, and this is left to the courts who adopt the definition found in DPP v McKeown, DPP v Jones [1997]. Lord Hoffman defined a computer as “a device for storing, processing and retrieving information.”
The CMA details several offences:
Section 1: unauthorised access to computer material
It is an offence under section 1 to cause computer to perform a function with intent to secure access to a programme or data without authorisation. The accused must have knowledge that the access was unauthorised, recklessness is insufficient. Section 1 carries a maximum of two years imprisonment.
Section 1(2) shows that the intention of the accused not have to be aimed at a specific programme. Section 1(2) also includes for employees who deliberately exceed their authority and access areas of to which they are denied access.
Section 2: unauthorised access with intent to commit or facilitate commission of further offences
This offence involves the unauthorised access offence under Section 1 but adds an element of intention to commit or facilitate a more serious ‘further’ offence. A Defendant cleared of the Section 2 offence could still be convicted of under Section 1.
Offences could be theft by diverting electronic funds or gaining sensitive information for the purposes of blackmail. Section 2 carries a maximum penalty on indictment of five years’ imprisonment.
Section 3: unauthorised acts with intent to impair, or with recklessness as to impairing, the operation of a computer
This offence involves an (a) impair the operation of any computer, (b) prevent or hinder access to any program or data held in any computer; (c) impair the operation of any such program or the reliability of any such data; or enable any of the three aforementioned points above to be done.
The case of DPP v Lennon (2006) established that Section 3 is relevant to distributed denial of service attacks (DDoS). This offence carries a maximum sentence on indictment of 10 years’ imprisonment or to a fine or both.
Section 3ZA: unauthorised acts causing, or creating risk of, serious damage
This offence carries a maximum sentence on indictment is 14 years. However, Section 3ZA may carry a life a sentence if it caused or created a significant risk of serious damage to human welfare or national security, as defined in Section 3 (a) and (b).
Section 3A: making, supplying or obtaining articles for use in offence under Section 1, 3 or 3ZA.
This offences covers the market which comprises of electronic malware which can be used to access computer systems. The CMA does not define article but section 8 of the Fraud Act 20017 provides that an article includes any programme or data held in an electronic form. Section 3A(2) involves supplying an article likely to be used to commit an offence under section 1 or 3. This offence carries a maximum sentence on indictment is two years’ imprisonment.
Section 4 liability for the offences under sections 1, 3 or 3ZA requires proof of at least one significant link with the home country concerned. A significant link may entail: presence in the home country at the time of the offence. The victim’s presence in the home country. Online activity involving a server based in the home country.
Cyber Stalking
The Protection of Freedoms Act 2012 created two new offences of stalking by inserting new sections into The Protection from Harassment Act 1997. This includes harassment over the internet sometimes defined as Cyber Stalking.
It is generally defined as the repeated use of electronic communications to harass or frighten someone, for example by sending threatening emails or forcing contact through social media.
Revenge Pornography Offences
Revenge porn was made an offence under section 33 of the Criminal Justice and Courts Act 2015. Previously, such cases were prosecuted under the Communications Act 2003, Malicious Communications Act 1988 or the Harassment Act 1997.
Revenge porn is the sharing of private sexual material, either photos or videos, of another person without their consent and with the purpose of causing embarrassment or distress. The images are sometimes accompanied by personal information about the subject, including their full name, address and links to their social media profiles.
The offence applies both online and offline and to images which are shared electronically or in a more traditional way so includes the uploading of images on the internet, sharing by text and e-mail, or showing someone a physical or electronic image.
Indecent Images Cases
One of the most commonly prosecuted type of cases related to the internet are allegations of possession and distribution of indecent images. Phoenix has vast knowledge and understanding of such cases including those relating to virtual child pornography.
In these types of cases it is important to seek advice at the earliest stage, preferably at the police station. In some circumstances it is possible to avoid prosecution at the first instance if good advice is given at an early stage.
Copyright infringement/ Digital Piracy
What is copyright?
Copyright includes the rights to prevent others from copying, adapting or performing your works, and the right to control the first communication of your works to the public.
Copyright can subsist in a wide range of works, which the UK’s Copyright Designs and Patents Act 1988 groups into
- Literary, dramatic, musical or artistic works
- Sound recordings, films or broadcasts
- The typographical arrangement of published editions.
There are also “related rights” such as rights in performances.
Computer software is treated as a “literary work” for these purposes, whereas architectural works come under “artistic” works, as do “works of artistic craftsmanship”. Video games are included within “films”.
If something can be recorded or “fixed” in any reproducible form, generally it is capable of being a copyright work.
To be protectable, a work has to be “original”. The bar for originality is set quite low; it is completely different from the requirements for “novelty” and “lack of obviousness” required for patent protection.
Copyright only protects the form in which a work is expressed, not the idea underlying it. For example, if you publish a recipe book, those recipes attract copyright, but someone making a Victoria sponge cake to your recipe is not infringing your rights. Furthermore, if someone is inspired by your cake recipe to create their own and write it down, it is unlikely their recipe will infringe copyright in yours.
Copyright ownership and copyright protection
Copyright is not a registered right; it arises by operation of law as soon as a copyright work comes into existence. As the UK is a signatory to numerous international copyright conventions, works created by UK nationals enjoy the same protection in other signatory states as is given to nationals of those states. As a result, in practice copyright is the closest thing to a truly international intellectual property right which exists.
Copyright is infringed by doing one of the acts reserved to the copyright owner, without the owner’s permission or without another lawful reason. This includes copying the work in whole or in “substantial part”. Because running a computer program or reading an ebook involves the creation of transient copies, this means that the unauthorised downloading or sharing of digital media constitutes copyright infringement.
Other acts of infringement include making unauthorised adaptations or translations of copyright works, performing copyright works in public without the permission of the rights’ holder and selling or supplying infringing copies.
Copyright infringement cases can be brought in the High Court or the Intellectual Property Enterprise Court.