Cybercrime Law in Portugal: a short preliminary approach

Manuel David Masseno

Algarve, 9 December 2013
1

Cybercrime Law in Portugal

I. For a start
1. Portugal has an up-to-date legal framework regarding the fight against Cybercrime, following the International standards, namely:

the Council of Europe Convention on Cybercrime, signed at Budapest, the 23rd November 2001, in force since 2009, with the New Cybercrime Law, Law N. 109/2009, of 15 September

as well as the, previous, Committee of Ministers of the Council of Europe Recommendations, already were, with the Old Computer Crimes Law, Law N. 109/1991, of 17 August
2

Cybercrime Law in Portugal

2. Portugal has also transposed the European Union most relevant legal instruments:

Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography Council Framework Decision 2005/222/JHA of 24 February 2005 on attacks against information systems Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography
3

But has yet to transpose the new generation:

Cybercrime Law in Portugal

Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems

The first of the Directives should be transposed until the 18 December 2013, but the legislative procedure is quite in retard, even being priority for the Minister of Justice, possibly for an excess of ambition Besides, being these criminal laws, there is no point for recognizing a direct effect to any of the mentioned Directives, notwithstanding that EU Member States kept a certain margin of appreciation when transposing any of them

Cybercrime Law in Portugal

II. The Sources of Portuguese Law on Cybercrime, a very short overview

even if there is the, so called, Cybercrime Law, computer related offenses are also in several other Laws, including the 1995 Penal Code, as Ill mention we will focus only on Material Laws, not in Law related to Law Enforcement

1. Offenses against Persons

the common protected legal good is Human Dignity (Art. 1 of the UDUR Universal Declaration of Human Rights, also Art. 1 of the CFREU Charter of Fundamental Rights of the European Union and Art. 1 of the CPR - Constitution of the Portuguese Republic)
5

Cybercrime Law in Portugal

Criminal Types:

Crimes related to Child Pornography, even virtual (Art. 176 of the Penal Code) Hate Crimes, i.e., racial, religious or sexual discrimination or defamation using the Internet (Art. 241.2 also of the Penal Code) Computerized Invasion of Privacy (Art. 193 still of the Penal Code) Breach of Privacy in Telecommunications (Art. 194 of the Penal Code) and Crimes related to the Protection of Personal Data (Law N. 67/98, of 26 of October) non-compliance with obligations relating to data protection (Art. 43 and 46)
6

Cybercrime Law in Portugal

undue access (Art. 44) invalidation or destruction of personal data (Art. 45) violation of the duty of secrecy (Art. 47)

2. Offenses against Property

in this case, the common protected legal good is the Entitlement to Private Property (Art. 17 of the UDHR, also Art. 17 of the CFREU and Art. 62 of the CPR)

Cybercrime Law in Portugal

Criminal Types: Crimes against Intellectual Property:

we should have in mind that in Portugal theres an old legal tradition of criminalizing IP offenses, both related to Copyright and to Industrial Property unauthorized copying, distribution and selling of digital works in copyright, in general (Art. 195 and 196 of the CCRR - Code of Copyright and Related Rights, 1985) circumvention of technological measures and of electronic rights-management information (Art. 218 and 224 of the CCRR, after Law N. 50/2004, of 24 August)
8

Cybercrime Law in Portugal

illegal reproduction of protected programmes (Art. 8 of the Cybercrime Law) reproduction, distribution or communication to the public, at a commercial level, of a creative database (Art. 11 of Decree Law N. 122/2000, of July 4)

also relevant Law N. 16/2008, of April 1, for the enforcement of Intellectual Property rights

Crimes against Confidence/Trust: computer and communications fraud (Art. 221 of the Penal Code) computer-related forgery (Art. 3 of Cybercrime Law)
9

Cybercrime Law in Portugal

Crimes against the Integrity of Computer Data: damage caused to programmes or other computer data (Art. 4 of the Cybercrime Law)

2. Offenses against the Availability of Computer Systems, including networks

in this case, the protected legal good is the Entitlement to Private Property (Art. 17 of the UDHR, also Art. 17 of the CFREU and Art. 62 of the CPR), together with the Right to Privacy (Art. 12 of the UDHR, Art. 7 of the CFREU and Art. 26 and 34 of the CPR), and the Liberty to Conduct a Business (Art. 16 of UDHR and Art. 61 of the CPR)
10

Cybercrime Law in Portugal

Criminal Types:

illegal access (Art. 6 of the Cybercrime Law) illegal interception (Art. 7 of the Cybercrime Law) system interference (Art. 5 of the Cybercrime Law) in all these offenses, the misuse of devices is criminalized (Art. 5.2, 6.2 and 7.3 of the Cybercrime Law), as well as in the case of damage caused to programmes or other computer data (Art. 4.3 of the Cybercrime Law) and of computer-related forgery (Art. 3.4 of Cybercrime Law) the same for the circumvention of technological measures for copyright protection (Art. 119 of Code of Copyright and Related Rights)
11

Cybercrime Law in Portugal

Thank You
for Your Attention!

Any questions are, will be, welcome!

Contacts:

E-mail: mdmasseno@gmail.com Cellphone: (351) 968929198 Skype: manuel.david.masseno

12