Hacking—The Unauthorised Access of Computer Systems; the Legal Implications
| Date | 01 March 1989 |
| Author | David I. Bainbridge |
| Published date | 01 March 1989 |
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02820.x |
236
THE
MODERN
LAW
REVIEW
[Vol.
52
In
ex.p. The Association
of
Pharmaceutical Imporrers,
Kerr
L.J. demonstrates enthusiastic acceptance
of
this communautaire
attitude. The European Court will have access
to
information
about the method by which other member-States have dealt with
the difficult problems at issue in the case before the English courts,
and it is therefore to Luxembourg that questions should now be
addressed. The substantive point is, as Kerr
L.J.
indicates, one
of
“great general importance, not only for this country but
for
the
Community in general.’’
It is the
acte clair
doctrine that has in the past led English courts
into peril.. The Court of Appeal in
ex.p. The Association
of
Pharmaceutical Importers
has avoided the trap that ensnared the
same court in
Henn and Darby
v.
D. P. P. Acte clair
applies where
a previous decision
of
the European Court covers the point or
where there can be no doubt about the correct answer, but Kerr
L.J. is quite right
to
hold this dispute to be “miles away” from
acte
clair.
The extent
of
the Article
30
prohibition is by no means clear
and the European Court should be given every opportunity further
to define a provision
of
vital importance to the establishment
of
the
free movement
of
goods in the common market. This case
is
likely
to yield much more of great interest. STEVE WEATHERILL*
HACKING-THE
UNAUTHORISED ACCESS
OF
COMPUTER
SYSTEMS;
THE
LEGAL IMPLICATIONS
THE
recent House
of
Lords decision in the cases
of
Gold
and
Schifreen‘
highlights the problem
of
computer hacking and the
danger
of
people gaining access to computer files without
authorisation. The computer industry is
left
to contemplate the
prospect that a computer hacker does not commit a criminal
offence when he “hacks” into someone’s computer
files.
There are
various murmurings about this “loophole” in the law and the
failure
of
Parliament, once again, to act quickly in matters involving
new technology. But, the law is not totally impotent when it comes
to unauthorised access
to
information stored in computer systems
as
I
intend to’demonstrate. In the longer term, it may be preferable
to enact specific legislation covering hacking and related computer
abuse but, in the meantime, both the existing criminal and civil law
contain remedies to the problem.
The law is very flexible but, when a new mischief is first
detected, it may be difficult to choose the most appropriate area
of
law under which to seek a remedy. There may be several areas
of
existing law which appear to have the potential
of
application to
the new problem. Some will be better suited than others and the
Lecturer
in
Law,
University
of
Manchcstcr.
I
[1988]
2
W.L.R.
984.
To continue reading
Request your trial