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Bahamas Numbered Acts |
No. 2 of 200 3 |
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AN ACT TO MAKE PROVISIONS SECURING |
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COMPUTER MATERIAL AGAINST |
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UNAUTHORISED ACCESS |
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OR MODIFICATION AND FOR |
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CONNECTED PURPOSES. |
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[Date of Assent : - 11th April, 20031 |
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Enacted by the Parliament of The Bahamas, |
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PART I |
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PRELIMINARY |
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1.(1)
This Act may be cited as the
Computer Misuse Act, 2003.
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Short title and commencement. |
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(2)
This Act shall come into
operation on such day as the Minister may, by notice published in
the Gazette, appoint.
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2.(1)
In this Act -
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Interpretation. |
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"computer" means an electronic, magnetic, optical, electrochemical, or other data processing device, or a group of such interconnected or related devices, performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device or group of such interconnected or related devices, but does not include - |
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(a)
an automated typewriter or
typesetter;
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(b)
a portable hand held
calculator;
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(c)
a similar device which is
non-programmable or which does not contain any data storage
facility; or
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(d)
such other device as the
Minister may, by notice published in the Gazette, prescribe;
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"computer output" or "output" means a statement or representation (whether in written, printed, pictorial, graphical or other form) purporting to be a statement or representation of fact - |
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(a)
produced by a computer; or
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(b)
accurately translated from a
statement or representation so produced;
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"computer service" includes computer time, data processing and the storage or retrieval of data; |
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"damage" means, except for the purposes of section 12, any impairment to a computer or the integrity or availability of data, a program or system, or information, that - |
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(a)
causes economic loss aggregating
ten thousand dollars in value, or such other amount as the Minister
may, by notice published in the
Gazette, prescribe except that any
such loss incurred or accrued more than one year after the date of
the offence in question shall
not be taken into account;
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(b)
modifies or impairs, or
potentially modifies or impairs, the medical examination,
diagnosis, treatment or care of one or more persons;
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(c)
causes or threatens physical
injury or death to any person;
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(d)
threatens public health or
public safety; or
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(e)
threatens physical damage to a
computer;
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"data" means representations of information or of concepts in a form suitable for use in a computer; |
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"electronic, acoustic, mechanical or other device" means any device or apparatus that is used or is capable of being used to intercept any function of a computer; |
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"function" includes logic, control, arithmetic, deletion, storage and retrieval and communication or telecommunication to, from or within a computer; |
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"intercept" , in relation to a function of a computer, includes listening to or recording a function of a computer, or acquiring the substance, meaning or purport thereof; |
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"program" or "computer program" means data representing instructions or statements that, when executed in a computer, causes the computer to perform a function; and a reference in this Act to a program includes a reference to part of a program. |
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(2)
For the purposes of this Act,
a person "secures access" to any program or data held in a computer
if he causes a computer to perform
any function in relation to such
program or data, that -
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(a)
alters or erases it;
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(b)
copies or moves it to any storage
medium other than that in which it is held or to a different
location in the storage medium in which
it is held;
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(c)
uses it; or
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(d)
causes it to be output from the
computer in which it is held (whether by having it displayed or in
any other manner);
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and references in this Act to securing access or to an intent to secure such access shall be construed accordingly. |
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(3)
For the purposes of subsection
(2) (c), a person "uses" a program if the function he causes the
computer to perform causes the program
to be executed or is itself
a function of the program.
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(4)
For the purposes of subsection
(2) (d), the form in which any program or data is output is
immaterial (including in particular whether
or not it represents a
form in which, in the case of a program, it is capable of being
executed or, in the case of data, it is capable
of being processed
by a computer).
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(5)
For the purposes of this Act,
access of any kind by any person to any program or data held in a
computer is "unauthorised" if -
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(a)
he is not himself entitled to
control access of the kind in question to the program or data;
and
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(b)
he does not have consent to such
access from any person who is so entitled.
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(6)
A reference in this Act to
"any program or data held in a computer" includes a reference to
such program or data held in any removable
storage medium which is
for the time being in the computer; and a computer is to be
regarded as containing any program or data held
in any such
medium.
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(7)
For the purposes of this Act,
a "modification of the contents of any computer" takes place if, by
the operation of any function of
the computer concerned or any
other computer -
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(a)
any program or data held in the
computer concerned is altered or erased;
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(b)
any program or data is added to
its contents; or
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(c)
any act occurs which impairs the
normal operation of any computer;
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and any act which contributes towards causing such a modification shall be regarded as causing it. |
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(8)
Any modification referred to
in subsection (7) is unauthorised if -
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(a)
the person whose act causes it is
not himself entitled to determine whether the modification should
be made; and
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(b)
he does not have consent to the
modification from any person who is so entitled.
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PART II |
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OFFENCES |
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3.(1)
Subject to subsection (2), any
person who, without authority, knowingly causes a computer to
perform any function for the purpose
of securing access to any
program or data held in any computer shall be guilty of an offence
and shall be liable on summary conviction
to a fine not exceeding
five thousand dollars or to imprisonment for a term not exceeding
six months or to both such fine and imprisonment
and, in the case
of a second or subsequent conviction, to a fine not exceeding ten
thousand dollars or to imprisonment for a term
not exceeding one
year or to both such fine and imprisonment.
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Unauthorised access to computer material. |
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(2)
If any damage is caused as a
result of an offence under this section, a person convicted of the
offence shall be liable to a fine
not exceeding twenty thousand
dollars or to imprisonment for a term not exceeding three years or
to both such fine and imprisonment.
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(3)
For the purposes of this
section, it is immaterial that the act in question is not directed
at -
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(a)
any particular program or
data;
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(b)
a program or data of any kind;
or
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(c)
a program or data held in any
particular computer.
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4.(1)
Any person who causes a
computer to perform any function for the purpose of securing access
to any program or data held in any computer
with intent to commit
an offence (whether by himself or by any other person) to which
this section applies shall be guilty of an
offence.
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Access with intent to commit or facilitate commission of offence. |
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(2)
This section shall apply to an
offence involving property, fraud, dishonesty or which causes
bodily harm and which is punishable on
conviction with imprisonment
for a term of not less than two years.
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(3)
Any person guilty of an
offence under this section shall be liable on summary conviction,
to a fine not exceeding ten thousand dollars
or to imprisonment for
a term not exceeding three years or to both such fine and
imprisonment.
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(4)
A person may be guilty of an
offence under this section even though the facts are such that the
commission of the further offence
is impossible.
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(5)
For the purposes of this
section, it is immaterial whether -
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(a)
the access referred to in
subsection (1) is authorised or unauthorised;
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(b)
the offence to which this section
applies is committed at the same time when the access is secured or
at any other time.
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5.(1)
Subject to subsection (2), any
person who does any act which he knows will cause an unauthorised
modification of the contents of any
computer shall be guilty of an
offence and shall be liable on summary conviction to a fine not
exceeding ten thousand dollars or
to imprisonment for a term not
exceeding one year or to both such fine and imprisonment and, in
the case of a second or subsequent
conviction, to a fine not
exceeding twenty thousand dollars or to imprisonment for a term not
exceeding three years or to both such
fine and imprisonment.
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Unauthorised modification of computer material. |
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(2)
If any damage is caused as a
result of an offence under this section, a person convicted of the
offence shall be liable to a fine
not exceeding twenty thousand
dollars or to imprisonment for a term not exceeding three years or
to both such fine and imprisonment.
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(3)
For the purposes of this
section, it is immaterial that the act in question is not directed
at -
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(a)
any particular program or
data;
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(b)
a program or data of any kind;
or
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(c)
a program or data held in any
particular computer.
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(4)
For the purposes of this
section, it is immaterial whether an unauthorised modification is,
or is intended to be, permanent or merely
temporary.
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6.(1)
Subject to subsection (2), any
person who knowingly -
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Unauthorised use or interception of computer service. |
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(a)
secures access without authority
to any computer for the purpose of obtaining, directly or
indirectly, any computer service;
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(b)
intercepts or causes to be
intercepted without authority, directly or indirectly, any function
of a computer by means of an electro-magnetic,
acoustic, mechanical
or other device; or
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(c)
uses or causes to be used,
directly or indirectly, the computer or any other device for the
purpose of committing an offence under
paragraph (a) or (b),
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shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding three years or to both such fine and imprisonment and, in the case of a second or subsequent conviction, to a fine not exceeding twenty thousand dollars or to imprisonment for a term not exceeding three years or to both such fine and imprisonment. |
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(2)
If any damage is caused as a
result of an offence under this section, a person convicted of the
offence shall be liable to a fine
not exceeding fifty thousand
dollars or to imprisonment for a term not exceeding five years or
to both such fine and imprisonment.
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(3)
For the purposes of this
section, it is immaterial that the unauthorised access or
interception is not directed at -
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(a)
any particular program or
data;
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(b)
a program or data of any kind;
or
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(c)
a program or data held in any
particular computer.
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7.(1)
Any person who, knowingly and
without authority or lawful excuse -
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Unauthorised obstruction of use of computer. |
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(a)
interferes with, or interrupts or
obstructs the lawful use of, a computer; or
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(b)
impedes or prevents access to, or
impairs the usefulness or effectiveness of, any program or data
stored in a computer,
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shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding three years or to both such fine and imprisonment and, in the case of a second or subsequent conviction, to a fine not exceeding twenty thousand dollars or to imprisonment for a term not exceeding five years or to both such fine and imprisonment. |
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(2)
If any damage is caused as a
result of an offence under this section, a person convicted of the
offence shall be liable to a fine
not exceeding fifty thousand
dollars or to imprisonment for a term not exceeding five years or
to both such fine and imprisonment.
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8.(1)
Any person who, knowingly and
without authority discloses any password, access code or any other
means of gaining access to any program
or data held in any computer
shall be guilty of an offence if he did so -
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Unauthorised disclosure of access code. |
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(a)
for any wrongful gain;
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(b)
for any unlawful purpose;
or
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(c)
knowing that it is likely to
cause wrongful loss to any person.
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(2)
Any person guilty of an
offence under subsection (1) shall be liable on summary conviction
to a fine not exceeding ten thousand dollars
or to imprisonment for
a term not exceeding three years or to both such fine and
imprisonment and, in the case of a second or subsequent
conviction,
to a fine not exceeding twenty thousand dollars or to imprisonment
for a term not exceeding five years or to both such
fine and
imprisonment.
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9.(1)
Where access to any protected
computer is obtained in the course of the commission of an offence
under section 3, 5, 6 or 7, the person
shall be tried on
information and shall be liable on conviction to a fine not
exceeding one hundred thousand dollars or to imprisonment
for a
term not exceeding twenty years or to both such fine and
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Enhanced punishment for offences involving protected computers. |
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(2)
For the purposes of subsection
(1), a computer shall be treated as a "protected computer" if the
person committing the offence knew,
or ought reasonably to have
known, that the computer or program or data is used directly in
connection with or necessary for -
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Incitement, abetments and attempts punishable as full offences. |
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(a)
the security, defence or
international relations of The Bahamas;
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(b)
the existence or identity of a
confidential source of information relating to the enforcement of a
criminal law;
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(c)
the provision of services
directly related to communications infrastructure, banking and
financial services, public utilities, public
transportation or
public key infrastructure; or
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(d)
the protection of public safety
including systems related to essential emergency services such as
police, civil defence and medical
services.
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(3)
For the purposes of any
prosecution under this section, it shall be presumed, until the
contrary is proved, that the accused has the
requisite knowledge
referred to in subsection (2) if there is, in respect of the
computer, program or data, an electronic or other
warning exhibited
to the accused stating that unauthorised access to that computer,
program or data attracts an enhanced penalty
under this
section.
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10.(1)
Any person who incites,
solicits or abets the commission of or who attempts to commit or
does any act preparatory to or in furtherance
of the commission of
any offence under this Act shall be guilty of that offence and
shall be liable on summary conviction to the
punishment provided
for the full offence.
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(2)
For an offence to be committed
under this section, it is immaterial where the full offence in
question took place.
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PART III |
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MISCELLANEOUS AND GENERAL |
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11.(1)
This section has effect to
supplement the provisions of the Penal Code in relation to the
jurisdiction of the courts of The Bahamas
to try offences which do
not take place wholly in The Bahamas.
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Territorial scope of offences under this Act. Ch. 77. |
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(2)
Subject to subsection (3) the
provisions of the Act shall have effect, in relation to any person,
whatever his nationality or citizenship,
outside as well as within
The Bahamas.
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(3)
Where an offence under this
Act is committed by any person in any place outside The Bahamas, he
may be dealt with as if the offence
had been committed within The
Bahamas.
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(4)
For the purposes of this
section, this Act shall apply if, for the offence in
question-
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(a)
the accused was in The Bahamas at
the material time; or
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(b)
the computer, program or data was
in The Bahamas at the material time.
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12.(1)
Notwithstanding any Act to the
contrary prescribing the time limit within which summary
proceedings may be commenced and subject to
subsection (2),
proceedings for an offence under this Act may be brought within a
period of twelve months from the date on which
evidence sufficient
in the opinion of the Attorney-General to warrant prosecutions came
to his knowledge.
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Commencement of proceedings. |
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(2)
No such proceedings shall be
brought by virtue of this section more than three years after the
commission of the offence.
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(3)
For the purposes of this
section, a certificate signed by or on behalf of the
Attorney-General and stating the date on which evidence
sufficient
in his opinion to warrant the commencement of proceedings came to
his knowledge shall be conclusive evidence of that fact.
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13.(1)
The court before which a
person is convicted of any offence under this Act may make an order
against him for the payment by him of
a sum to be fixed by the
court by way of compensation to any person for any damage caused to
his computer, program or data by the
offence for which the sentence
is passed.
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Order for payment of compensation. |
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(2)
Any claim by a person for
damages sustained by reason of the offence shall be deemed to have
been satisfied to the extent of any amount
which has been paid to
him under an order for compensation, but the order shall not
prejudice any right to a civil remedy for the
recovery of damages
beyond the amount of compensation paid under the order.
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(3)
An order of compensation under
this section shall be recoverable as a civil debt.
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14.
Nothing in this Act shall
prohibit a police officer, a person authorised in writing by the
Commissioner of Police under section 16(1)
or any other duly
authorised law enforcement officer from lawfully conducting
investigations pursuant to his powers conferred under
any written
law.
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Saving for investigations. |
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15.(1)
A police officer may arrest
without warrant any person who has committed or is committing, or
whom the police officer with reasonable
cause suspects to have
committed, or to be committing, an offence under this Act.
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Police powers. |
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(2)
Any power of seizure conferred
on a police officer who has entered premises by virtue of a warrant
issued under section 66 of the
Criminal Procedure Code in relation
to an offence under this Act, or any related inchoate offence,
shall be construed as including
a power to require any information
relating to the warrant which is held in a computer and accessible
from the premises to be produced
in a form in which it can be taken
away and in which it is legible (whether or not with the use of a
computer).
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(3)
Where the items seized by a
police officer under section 66 of the Criminal Procedure Code
include computers, disks or other computer
equipment, the
magistrate before whom those items are brought in accordance with
section 68 of the Criminal Procedure Code may, on
the application
of the person to whom those items belong or from under whose
control they were taken, and subject to subsection (4),
make an
order -
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(a)
permitting a police officer to
make copies of such programs or data held in the computer, disks or
other equipment as may be required
for the investigation or
prosecution of the offence;
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(b)
requiring copies of those copies
to be given to any person charged in relation to the offence ("the
accused person"); and
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(c)
requiring the items to be
returned within a period of seventy-two hours,
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and when seizing any such items the police officer shall inform the person to whom those items belong or from under whose control they are taken of his right to make an application under this subsection. |
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(4)
Subsection (3) (b) shall not
apply -
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(a)
in relation to copies of any
items returned to the accused person; or
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(b)
where the court is satisfied that
-
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(i)
the provision of copies would
substantially prejudice the investigation or prosecution, or
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(ii)
owing to the confidential nature
of the information obtained from the computers, disks or other
equipment, the harm which may be caused
to the business or other
interests of the applicant or any third party by giving copies of
that information to the accused person
outweighs any prejudice
which may be caused by not so doing.
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(5)
Any copies made pursuant to
subsection (2) or (3) shall, for the purposes of admissibility in
any proceedings, be treated as if they
were themselves the items
seized.
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16.(1)
A police officer or a person
authorised in writing by the Commissioner of Police, pursuant to a
warrant under section 66 of the Criminal
Procedure Code, shall
-
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Power of police officer to access computer and data. |
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(a)
be entitled at any time to
-
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(i)
have access to and inspect and
check the operation of any computer to which this section
applies,
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(ii)
use or cause to be used any such
computer to search any data contained in or available to such
computer, or
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(iii)
have access to any information,
code or technology which has the capability of retransforming or
unscrambling encrypted data contained
or available to such computer
into readable and comprehensible format or text for the purpose of
investigating any offence under
this Act or any other offence which
has been disclosed in the course of the lawful exercise of the
powers under this section;
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(b)
be entitled to require -
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(i)
the person by whom or on whose
behalf, the police officer or investigation officer has reasonable
cause to suspect, any computer to
which this section applies is or
has been used, or
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(ii)
any person having charge of, or
otherwise concerned with the operation of, such computer, to
provide him with such reasonable technical
and other assistance as
he may require for the purposes of paragraph (a); or
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(c)
be entitled to require any person
in possession of decryption information to grant him access to such
decryption information necessary
to decrypt data required for the
purpose of investigating any such offence.
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(2)
This section shall apply to a
computer which a police officer or a person authorised in writing
by the Commissioner of Police has
reasonable cause to suspect is or
has been in use in connection with any offence under this Act or
any other offence which has been
disclosed in the course of the
lawful exercise of the powers under this section.
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(3)
The powers referred to in
paragraphs (a) (ii) and (iii) and (c) of subsection (1) shall not
be exercised except with the consent of
the Attorney-General.
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(4)
Any person who obstructs the
lawful exercise of the powers under subsection (1) (a) or who fails
to comply with a request under subsection
(1) (b) or (c) shall be
guilty of an offence and shall be liable on summary conviction to a
fine not exceeding ten thousand dollars
or to imprisonment for a
term not exceeding three years or to both such fine and
imprisonment.
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(5)
For the purposes of this
section -
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"decryption information" means information or technology that enables a person to readily retransform or unscramble encrypted data from its unreadable and incomprehensible format to its plain text version; |
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"encrypted data" means data which has been transformed or scrambled from its plain text version to an unreadable or incomprehensible format, regardless of the technique utilised for such transformation or scrambling and irrespective of the medium in which such data occurs or can be found for the purposes of protecting the content of such data; |
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"plain text version" means original data before it has been transformed or scrambled to an unreadable or incomprehensible format. |
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17.(1)
Where a person is convicted of
an offence under this Act, or any related inchoate offence, and the
court is satisfied that any property
which was in his possession or
under his control at the time he was apprehended for the offence or
when a summons in respect of it
was issued -
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Forfeiture. |
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(a)
has been used for the purpose of
committing, or facilitating the commission of, the offence in
question or any other such offence;
or
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(b)
was intended by him to be used
for that purpose,
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the court may order that property to be forfeited to the Crown, and may do so whether or not it deals with the offender in respect of the offence in any other way. |
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(2)
In considering whether to make
an order in respect of any property the court shall have regard
-
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(a)
to the value of the property;
and
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(b)
to the likely financial and other
effects on the offender of the making of the order (taken together
with any other order the court
contemplates making).
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