CYBERCRIME: CASE LAW
1. OFFENCES V. THE CONFIDENTIALITY, INTEGRITY AND
AVAILABILITY OF COMPUTER SYSTEMS AND
COMPUTER DATA
1.1. NATIONAL LEVEL: BELGIUM
Bistel case (1988)
Context: ethical hacking
Context: This was an early hacking case in Belgium. A journalist reported
on the insufficient security of governmental digital infrastructure, noting
that passwords hadn't been changed for years.
Events: The journalist contacted a former employee of a ministerial
cabinet and asked him to test his old password. The password worked,
granting access to governmental information.
Legal Action: Authorities sought to punish the journalist and the former
employee. They were tried for offenses including written falsity (for using
the password), theft of energy, and interception of confidential
information.
Outcome: The punishment was only symbolic. The case is mentioned as
an early example of hacking in Belgium.
2. CONTENT RELATED OFFENCES
2.1. SUPRANATIONAL LEVEL
Nirvana baby
Context: The discussion of child pornography in the sources includes a
debate on the definition of child pornography and whether depictions of
minors in sexually suggestive ways or nudity constitute child pornography.
Issue: The Nirvana baby album cover case is mentioned as an example
illustrating how tricky the definition of "child pornography" can be.
Specifically, the source questions whether a simple picture of someone
naked, or a depiction of a child's sexual organs for primarily sexual
purposes (as included in some definitions), would fall under the scope of
child pornography definitions. The source notes that the artist in this case
(presumably the photographer of the album cover, though not explicitly
named) lost the second lawsuit related to this issue.
Relevance: This case highlights the challenges in interpreting legal
definitions of child pornography, particularly regarding nudity versus
sexually explicit conduct and the potential inclusion of depictions of sexual
organs for sexual purposes.
, 3. COPYRIGHT OFFENCES
3.1. SUPRANATIONAL LEVEL
La Macchia case
Context: This case is discussed in the context of copyright offenses and
the challenge of criminalizing infringement, particularly with peer-to-peer
(P2P) networks.
Events: The defendant, La Macchia, put his collection of CDs together with
a friend's collection so that everyone could listen to each other's
collections. This involved making copyrighted material available on a
network.
Legal Issue: La Macchia was prosecuted for this. The case raised the
issue of commercial motive in criminal copyright infringement. Even
though he wasn't directly making money from sharing, the argument was
made that he infringed for purposes of "private financial gain". This
"private financial gain" was interpreted to include the receipt, or
expectation of receipt, of anything of value, including other copyrighted
work.
Outcome: The sources mention the legal argument around "private
financial gain" in the context of criminalizing copyright infringement, even
without direct monetary profit. The Sony v. Tenenbaum case is later cited
as dealing with a similar interpretation.
3.2. NATIONAL LEVEL
A. BELGIUM
Pirate Bay
Context: Pirate Bay is discussed as an example of a peer-to-peer sharing
platform and the challenges of enforcing copyright law against such
decentralized networks.
Issue: The platform allows users to upload and download files
simultaneously, making their libraries available to each other. While the
network is decentralized, the index (allowing users to find content) is
slightly centralized. Enforcing copyright against such platforms is difficult
due to the distributed nature of the data and the challenge of identifying
who is doing what.
Legal Action/Outcome (Belgium): Administrators of Pirate Bay were
prosecuted in Belgium after the introduction of the economic code.
However, the case "ended up in nothing," and the administrators were
acquitted because there was "no evidence managers effectively in charge
in the period of accusation".
Legal Issue (Belgium/EU): A specific issue arose when a public
prosecutor in Belgium wanted to block access to the Pirate Bay website.
Despite the website not being hosted by a Belgian company, an order was
issued to Belgian ISPs to block access. The ISPs challenged this, arguing it
was technically ineffective (users could use VPNs) and would require
1. OFFENCES V. THE CONFIDENTIALITY, INTEGRITY AND
AVAILABILITY OF COMPUTER SYSTEMS AND
COMPUTER DATA
1.1. NATIONAL LEVEL: BELGIUM
Bistel case (1988)
Context: ethical hacking
Context: This was an early hacking case in Belgium. A journalist reported
on the insufficient security of governmental digital infrastructure, noting
that passwords hadn't been changed for years.
Events: The journalist contacted a former employee of a ministerial
cabinet and asked him to test his old password. The password worked,
granting access to governmental information.
Legal Action: Authorities sought to punish the journalist and the former
employee. They were tried for offenses including written falsity (for using
the password), theft of energy, and interception of confidential
information.
Outcome: The punishment was only symbolic. The case is mentioned as
an early example of hacking in Belgium.
2. CONTENT RELATED OFFENCES
2.1. SUPRANATIONAL LEVEL
Nirvana baby
Context: The discussion of child pornography in the sources includes a
debate on the definition of child pornography and whether depictions of
minors in sexually suggestive ways or nudity constitute child pornography.
Issue: The Nirvana baby album cover case is mentioned as an example
illustrating how tricky the definition of "child pornography" can be.
Specifically, the source questions whether a simple picture of someone
naked, or a depiction of a child's sexual organs for primarily sexual
purposes (as included in some definitions), would fall under the scope of
child pornography definitions. The source notes that the artist in this case
(presumably the photographer of the album cover, though not explicitly
named) lost the second lawsuit related to this issue.
Relevance: This case highlights the challenges in interpreting legal
definitions of child pornography, particularly regarding nudity versus
sexually explicit conduct and the potential inclusion of depictions of sexual
organs for sexual purposes.
, 3. COPYRIGHT OFFENCES
3.1. SUPRANATIONAL LEVEL
La Macchia case
Context: This case is discussed in the context of copyright offenses and
the challenge of criminalizing infringement, particularly with peer-to-peer
(P2P) networks.
Events: The defendant, La Macchia, put his collection of CDs together with
a friend's collection so that everyone could listen to each other's
collections. This involved making copyrighted material available on a
network.
Legal Issue: La Macchia was prosecuted for this. The case raised the
issue of commercial motive in criminal copyright infringement. Even
though he wasn't directly making money from sharing, the argument was
made that he infringed for purposes of "private financial gain". This
"private financial gain" was interpreted to include the receipt, or
expectation of receipt, of anything of value, including other copyrighted
work.
Outcome: The sources mention the legal argument around "private
financial gain" in the context of criminalizing copyright infringement, even
without direct monetary profit. The Sony v. Tenenbaum case is later cited
as dealing with a similar interpretation.
3.2. NATIONAL LEVEL
A. BELGIUM
Pirate Bay
Context: Pirate Bay is discussed as an example of a peer-to-peer sharing
platform and the challenges of enforcing copyright law against such
decentralized networks.
Issue: The platform allows users to upload and download files
simultaneously, making their libraries available to each other. While the
network is decentralized, the index (allowing users to find content) is
slightly centralized. Enforcing copyright against such platforms is difficult
due to the distributed nature of the data and the challenge of identifying
who is doing what.
Legal Action/Outcome (Belgium): Administrators of Pirate Bay were
prosecuted in Belgium after the introduction of the economic code.
However, the case "ended up in nothing," and the administrators were
acquitted because there was "no evidence managers effectively in charge
in the period of accusation".
Legal Issue (Belgium/EU): A specific issue arose when a public
prosecutor in Belgium wanted to block access to the Pirate Bay website.
Despite the website not being hosted by a Belgian company, an order was
issued to Belgian ISPs to block access. The ISPs challenged this, arguing it
was technically ineffective (users could use VPNs) and would require
