Cybercrime
Lodewijk Toeput, Miraculous fishing ( not phishing)
1. Cybercrime is all types of crime in which criminals use the internet as a means or an end.
The Internet can be used as a means to commit "classic" crimes, e.g. fraud, extortion, slander, stalking, possession of child pornography, data falsification, ...
Other types of crimes include hacking, phishing, spamming, ...
These use the internet as their goal. They did not exist before there was internet.
2. Hacking is defined in the Criminal Code as “ giving yourself access to or maintaining yourself in an IT system while you are not entitled to do so ”.
It has to be done knowingly.
The attempt to hack and the possession of hacker tools is also punishable, as is inciting hacking and the healing of hacked data.
The legislator makes a distinction between internal and external hacking. Internal hacking is when you exceed your authorization to access a computer system.
To attack a system from the outside is external hacking. IT systems are also Facebook, Hotmail, Telenet, WiFi networks, ...
Case law indeed shows that surfing on someone else's unsecured wireless network is not allowed.
Punishments range from three months' imprisonment to a year or even up to two years if committed with fraudulent intent.
3. The internet does not stop at national borders, international cooperation is crucial.
That is why, since 2001, Europe has stepped up the fight against cybercrime with, among other things, a convention on combating criminal offenses connected to electronic networks.
Europe determines the minimum measures that the member states must take to combat cybercrime.
Belgium already largely did this with the law of 28 November 2000 on computer crime.
This law introduced a number of new crimes in the Criminal Code, such as computer fraud and hacking.
4. Police techniques to tackle internet crimes are known as " special investigative methods " .
These techniques are at odds with privacy.
Privacy or the right to private life is a fundamental right that is enshrined in our Constitution.
It is therefore important that all requirements and modalities registered in the legislation are complied with during detection.
Any action that affects your privacy must have a legal basis, and there are a range of means to investigate. The open search in an IT system (can be ordered by the attorney and investigating judge).
Network search concerns the extension of the IT search after 6.12.2018, this can no longer be done by the public prosecutor, only by the investigating judge.[1]
Reading the memory of a mobile phone is a common practice. According to the Court of Cassation[2], no other formal requirements were required for this.
On the other hand, the European Court of Human Rights [3] had already stated that this reading violates the right to private life (Article 8 ECHR), and is only possible when expressly provided for by law and in a democratic society is necessary to reach. Therefore, control is required by a judge.
There is also the possibility of cyber infiltration without disclosing the identity.
5. Insults on the Internet
In principle, there is a wide freedom of expression in Belgium.
However, this does not mean that people can just say anything about you :
- Racist statements are punishable. The Anti-Racism Act prohibits public expressions of racism, discrimination or xenophobia or expressions that incite discrimination. Traditionally, these have always been press offenses, although there is some debate as to whether statements on the internet belong to them. According to the Criminal Court of Brussels, yes, because the term "printing press" must be understood broadly. Racist press offenses go to criminal court.
- A dismissal for a work related post on Facebook may be justified. Given the right to freedom of expression, open criticism of the employer is permitted. But that criticism can go too far. The court decides when things have gone too far, taking into account a number of circumstances. If the Facebook page is public and the criticism is of such a nature that it causes serious harm to the employer, the dismissal is often justified.
The crime of slander and libel can occur on the Internet. Slander is about insults that damage someone's reputation. You are being falsely accused of a particular fact in public. Insults sent in a personal email are not covered as they are not public. So it is punishable on Facebook on a page that is shared[4] .Libel is punished with a prison sentence of eight days to one year.
6. Unwanted photos / videos on the internet
It is not entirely inconceivable that a photo or a video of you may unintentionally circulate on the internet (hereafter a photo on Facebook as an example).
Often you can arrange with the spreader to remove the photo. If this fails, you can assert your rights.
The " right to image " is at play in this case.
In short, you must always give your permission before a photo of you - you must be recognizable on it - is made or distributed.
If you do not give permission, there is a violation of your right to image.
That permission must be specific, you must clearly know where and in what context your photo will be shown.
After all, using the photo for a purpose other than agreed is a violation of the right to image.
An explicit permission is required for all photos taken in your private.
In a public place, the rules are a bit more lax: you are expected to agree to take the photo unless you object.
Using the photo effectively without permission is only allowed if you are not targeted in the photo. A close-up, "tagging" or circling someone counts as targeting.
There are exceptions to the rule that use of the photos is allowed without permission: it is not allowed if you are inadvertently associated with political, ideological or philosophical propaganda; if the photo is used commercially or finally if there are offensive or derogatory comments on the photo.
If you are in the picture with other people - you are, as it were, absorbed in the crowd - then no permission is required.
The same three exceptions apply to this above.
The distributor of the photo on Facebook must be able to prove that he / she had permission. Permission may be evidenced by circumstances.
Different rules apply to public persons: because these persons are known, they must tolerate to a certain extent that photos or videos of them are taken and distributed.
Hopefully it will not get that far, but if the distributor refuses to respond to your request, you can go to court to enforce your right to image.
The judge then orders the removal of the photo, possibly imposing a periodic penalty payment.
The distributor has to pay a sum of money for each day that the photo is still on it. In addition, you can receive moral damages if you prove that the photo has violated your honor and reputation.
7. Protection from the media
A special case is when the press uses a photo from face-book in an article without the person's permission. This is absolutely illegal unless that person is a public figure.
There is also such a thing as "the right to be forgotten." This is covered by the right to respect for your privacy. It means that you may oppose a new disclosure of previous convictions. For example, a newspaper decides to put some old articles on their public website, including an article about your conviction so many years ago stating your full name. If this bothers you enforce the right to be forgotten in court at least get your name out removed out of the article. The judge can impose a periodic penalty payment. You can also request compensation.
8. If you have complaints about the press you can always contact the Journalism Council.
The Journalism Council will first and foremost mediate between the parties. If this does not work, the Council will investigate the matter thoroughly and pass judgment.
The parties are heard and they may be assisted by a lawyer. However, if you are dissatisfied, you can still go to court.
9. You will invoke civil liability in court.
The court applies article 1382 of the Civil Code to the press publications: there must be an unlawful act from which damage arises.
One compares how a normal careful and circumspect journalist would have acted.
The judge has a wide discretion and will always take specific circumstances into account.
What matters is, for example, the invasion of your privacy, the correctness of the facts cited in the publication, whether unnecessarily offensive terms have been used, ...
Often the sanction will only constitute a symbolic compensation, unless you have lost your work due to the publication.
A ban on future publications is also possible, possibly with a periodic penalty payment. The judge may also order the newspaper to publish the judgment, rectification or right of reply.
10. If the press release is of a criminal nature, e.g. it is a case of slander and libel then it is a press offense.
These are not prosecuted in practice because a procedure for Assize is mandatory and this is too much hassle. Racist statements by the press are always prosecuted, they are brought before the criminal court.
You feel that nothing is black and white in this matter and much depends on the judge's assessment. That is why it is important to be assisted by a lawyer who can develop a strong argumentation. The office is happy to provide information and assistance.
[1] Constitutional Court no 174/2018; Computer law 2019/55 page 134 et seq. With note; it also ruled that Article 39 bis of the Criminal Code was unconstitutional insofar as it does not provide for a specific provision to protect the professional qualifications of doctors and lawyers?
[2] Cass.11.2.2015,P.14.1739.F
[3] EHRM,2.4.2015, Vinci construction
[4]Liège 28.5.209, Authors & Media, 20018-19 (Feb.2020) p. 381 (insult to ships by construction promoter)