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- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. General
- II. Legally protected property
- III. Basic constituent elements
- IV. Comparison with Swiss law
- Bibliography
- Materials
I. General
1 The development of information technology and its penetration into all areas, especially money transfer, have transformed this sector into a veritable haven for economic crime. The ease with which offences can be committed and the virtual absence of risk of criminal prosecution have encouraged the transfer of "traditional" economic offences to the Internet. In order to combat this form of crime, art. 8 CCC criminalizes "any improper manipulation during data processing with a view to effecting an unlawful transfer of ownership".
II. Legally protected property
2 This provision protects computer systems against fraudulent manipulation with the aim of causing damage to the property of others and profiting from it.
III. Basic constituent elements
A. A computer system
3 According to art. 1 let. a CCC, "the term 'computer system' means any isolated device or set of interconnected or related devices, which performs, or one or more of whose elements perform, automated data processing in execution of a program". The notion of computer system thus includes all hardwares (motherboard, processor, hard disk, screen, keyboard, printer, ...) and softwares (BIOS, operating system, software, updates, ...), as well as the devices that connect these different elements to each other (cables, router, wifi terminal, ...).
4 For further details on this concept, please refer to art. 1 CCC above.
B. Computer data
5 According to art. 1 let. b CCC, "the expression 'computer data' means any representation of facts, information or concepts in a form suitable for computer processing, including a program designed to cause a computer system to perform a function". The notion of computer data is therefore very broad, encompassing in particular all letters, symbols or programming codes that can be entered, processed and stored by a computer system.
6 For further details on this notion, please refer to art. 1 CCC above.
C. Punishable conduct
7 Art. 8 CCC lists a number of punishable acts and divides them into two categories. The first concerns the manipulation of data, while the second relates to interference with the functioning of the computer system.
1. Data manipulation
a. Data entry
8 Data input has the same meaning as in art. 4, 5 and 7 CCC. It therefore refers to the act whereby the perpetrator introduces into a computer system data originating from outside the system. However, art. 8 CCC does not penalize the introduction of just any data, but only that which is likely to cause proprietary damage.
9 In particular, data is introduced when the perpetrator, without authorization, inserts a debit card into an ATM and enters the personal identification number in order to make a cash withdrawal, or when the perpetrator logs on to an e-banking portal, in the place of a third party, using an ID and password that he has stolen, and wrongfully makes a money transfer.
b. Alteration, deletion and erasure of data
10 The concepts of data alteration, deletion and erasure are identical to those of art. 4, 5 and 7 CCC.
11 Data alteration occurs when the perpetrator undermines the integrity of the data, i.e. its reliability, accuracy and completeness. This is the case, for example, when the perpetrator alters the metadata of a payment during an online transaction, with the result that the bank's computer system redirects the funds to an account belonging to the perpetrator rather than to the account of the original recipient.
12 Data are also altered when the perpetrator attacks their content. A case in point is when the perpetrator changes the bank details or the amount of a payment order on an e-banking platform in the background, without the user noticing, so that the payment is higher than expected and/or is not credited to the intended account.
13 The author deletes data if he hinders free access to it. The author prevents the computer system from having full access to all the data to which it should have access. This is the case of the author who, having a credit limit with a credit card company, deletes the data relating to this limit from the company's computer system, in order to enable him to continue making credit payments, even though he knows he will not have the means to repay them.
14 Finally, data erasure is the definitive destruction of data. They no longer exist. We might think here of the author who accesses his creditor's computer system and deletes all data relating to the sum he owes, or of the person who, in the course of an online auction, deletes the highest bids and replaces them with his own bid at a much lower price.
2. Impairment of the computer system
15 To ensure that no fraudulent behaviour is overlooked, art. 8 let. b CCC also generally covers "any form of interference with the functioning of a computer system". This wording refers to acts such as manipulation of hardware, actions preventing printouts and acts affecting data records or data flows, as well as the order in which programs are executed.
16 In contrast to the behaviour punishable under art. 5 CCC, interference with the functioning of the computer system need not be serious. It must, however, be intended to cause financial loss.
17 An example of this would be the manipulation of a bank card payment terminal to confirm a payment to the seller, when in fact the payment has not been made to the account to be debited.
D. Damage to property
18 The above-mentioned behaviors are only punishable if they cause financial loss to others. This prejudice may be economic or material - a very broad concept which encompasses both liquid assets and tangible or intangible fixed assets of economic value. More generally, it can be defined as any injury to assets in the form of a decrease in assets, an increase in liabilities, a non-increase in assets or a non-decrease in liabilities.
19 The text of art. 8 CCC does not set a minimum amount for the pecuniary damage caused. Even a minimal loss is sufficient.
20 Nor is it required that the loss be definitive. A temporary or provisional loss may suffice. A fraudulent banking transaction which causes financial loss to the account holder who has been debited, but which is subsequently corrected when the fraud is revealed, constitutes an offence.
E. Unlawfulness
21 The perpetrator must act without right, i.e. without having been authorized to do so by the rightful owner, by law or by contract.
22 A person entrusted by a rightful claimant with a login and password to make an e-banking payment is not acting without right, as long as he or she is merely carrying out the instructions he or she has received. If, on the other hand, he uses his access rights to increase the amount of the transfer or change the identity of the beneficiary, he is acting without right.
23 The administrator of an e-banking portal or online store, whose task is to maintain it, is not liable to prosecution if he modifies data or temporarily prevents the website from functioning. On the other hand, if he takes advantage of his access, for example to modify data in a customer's account, he is guilty of computer fraud.
F. Intention
24 Computer fraud is intentional. Intention must cover all the objective constituent elements, i.e. both the punishable conduct and the occurrence of financial loss.
G. A special design
25 In addition to intent, art. 8 CCC requires that the author act in a drawing to procure for himself or a third party an economic benefit. In our view, the notion of economic benefit should not be understood in the narrow sense in which it is used in accounting. On the contrary, it encompasses all economic advantages that lead to enrichment. In other words, it refers to any improvement in a company's financial situation.
26 We are thinking primarily of an increase in assets, a decrease in liabilities, a non-decrease in assets or a non-increase in liabilities. In these cases, the enrichment corresponds, for example, to the price of goods delivered but not paid for, to the sum diverted from a bank account, or to the amount of the service obtained at someone else's expense.
27 In our opinion, the notion of economic benefit is even broader, and also extends to any patrimonial advantage. This is the case of the author who can use a paid streaming platform without having to pay for it, of the person who, when booking online, provides a third party's credit card number as a guarantee so as not to have to bear the risk of having his or her credit card debited in the event of a late cancellation, or of the person who uses the contact details of a third party, such as a student or pensioner, to obtain - at a reduced price - services that he or she would have had to pay the full price for.
28 The economic benefit intended by the author must also be obtained free of charge. If the author has or believes he has a pecuniary claim corresponding to the enrichment obtained, he is not acting without right and is therefore not punishable. Similarly, competing commercial activities which may cause economic harm to one person and benefit to another, but which are not carried out with fraudulent or dishonest intent, such as the use of information-gathering programs to leverage competition on the Internet, do not constitute computer fraud.
IV. Comparison with Swiss law
29 In Swiss law, the provision that comes closest to art. 8 CCC is art. 147 of the Swiss Criminal Code. However, this provision does not meet the requirements of art. 8 CCC in several respects.
30 Firstly, the legal assets protected by the two provisions are different. Art. 8 CCC protects computer systems against fraudulent manipulation with the aim of causing damage to the property of others and profiting from it. Art. 147 of the Swiss Criminal Code, on the other hand, protects only assets, to the exclusion of the computer system operator's interest in ensuring that the system is used correctly.
31 With regard to punishable conduct, art. 147 of the Swiss Criminal Code penalizes the incorrect, incomplete or improper use of data. These largely overlap with the concepts of introducing, altering, deleting or suppressing computer data, mentioned in art. 8 CCC. However, Art. 147 PC leaves a significant loophole open, as it does not penalize the deletion of data that should have been in the computer system.
32 Finally, art. 147 of the Criminal Code only punishes computer fraud caused by data manipulation. The conduct referred to in art. 8 let. b CCC is therefore not covered by art. 147 PC. This point is particularly problematic, as many acts escape punishment, even though Switzerland has undertaken to prosecute them.
33 It has to be said that Swiss law does not comply with art. 8 CCC and should therefore be adapted.
Bibliography
Corboz Bernard, Les infractions en droit suisse, vol. I, 3. éd., Berne 2010
Fiolka Gerhard, in: Niggli Marcel Alexander/Wiprächtiger Hans (éditeurs), Basler Kommentar, Strafrecht II, 4. éd., Bâle 2018
Schmid Niklaus, Computer- sowie Check- und Kreditkartenkriminalität, Zurich 1994
Stratenwerth Günter/Bommer Felix, Schweizerisches Strafrecht, Besonderer Teil I: Straftaten gegen Individualinteressen, 8. éd., Berne, 2022
Trechsel Stefan/Crameri Dean, in : Trechsel Stefan/Pieth Mark (éditeurs), Schweizerisches Strafgesetzbuch, Praxiskommentar, 4. éd., Zurich 2021
Materials
Conseil de l’Europe, Explanatory Report to the Convention on Cybercrime, Budapest 23.11.2001, disponible à https://rm.coe.int/168