Chapter 3: Transnational Offences
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3.4
CYBERCRIME
Recent developments in the field of information technology have given rise not only
to rapid expansion in e-commerce but also to innovative forms of criminal behaviour
and have provided new methods by which traditional criminal offences can be
committed.
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Using the Internet and other computer networks to commit crime has
created serious problems for national legislative bodies and national law enforcement
agencies. The rapid growth in cybercrime may restrict the development of e-commerce,
which depends on safe systems for money transactions, as businesses struggle to make
their computer networks and data more secure. Undoubtedly, self-regulation by the
high tech industry can play an important role in preventing the proliferation of
computer and Internet-related crime.
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In addition to implementing technical measures
to protect computer systems, legal and non-legal measures must be introduced to
prevent and deter criminal activities. While self-regulatory mechanisms to combat
misuse of the new technologies have many advantages over external regulation, to be
effective self-regulation needs to be supported by appropriate national legislation and
international agreements. However, many of the measures proposed by both national
and international agencies to tackle the problem of cybercrime arguably inhibit the
legitimate use and development of information technology and violate the right to
freedom of expression and the right to privacy.
Cybercrime offences can include: using the Internet for illegal money transactions;
violation of copyright by means of a computer system; gaining unauthorised access
to data held on a computer with the intention of committing a serious criminal
offence; intentionally hindering the functioning of a computer system by transmitting
or deleting computer data; and the distribution of child pornography. The
transnational nature of computer-related crime, which is generally committed in
‘cyberspace’, adds a jurisdictional complexity to the investigation and prosecution
of cybercrime. Substantive criminal law and procedure varies from State to State
and police investigative powers usually do not extend beyond national borders.
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Lack of harmonisation in criminal legislation has led to difficulty in establishing a
common definition of cybercrime and criminal investigations are hampered because
cross-border evidence gathering is dependent upon both formal and informal
international police co-operation.
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However, while the law and practice in relation
to mutual legal assistance in criminal matters has been notoriously slow and
laborious, cybercrime is a rapidly developing phenomenon. Concerned at the
133 See generally Y Akdeniz, C Walker and D Wall, (eds),
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