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The expansion of computer-based and information technology, and in particular the Internet, serves to assist the process of economic and cultural globalisation and, as a consequence, development. But at the same time, it also opens the door to new forms of violations perpetrated against legitimately owned property, both classical and emerging, with the data transmission mechanism itself being in danger of becoming a high risk sector. The cross-border nature of this type of conduct requires the introduction of standardised regulations on a global level if ambiguity is to be avoided and, along with it, avoiding legal insecurity as well as the vulnerability of first-class goods. From this logical standpoint, what has been described as being the most ambitious legislative project to date has been devised to deal with delinquency associated with the use of information and communications technologies. This project, in other words, is the European Council Convention on aspects related to the realm of computer delinquency, drawn up in Budapest on 23rd November 2001. This convention contains the bases which should be put into practice in the national creation of penal regulations. What is not contained in this convention, however, is a literal transposition mandate of a regulation or standard, but rather a mandate, once the standard has been ratified, for transposing these bases. In particular, the Convention contains a text which, in actual fact, conceals a political-criminal evaluation on the use of new technologies. This evaluation should be re-examined at the time the different States transpose these bases, with the member States having a certain margin for assuming or refusing policies, which at times are contained in the Convention, amid constant tensions between freedom and security or at times freedom and control. This work basically studies the first part of the supranational text of the European Council Convention on Cyber-crime, in relation to the types of offence: illegal or abusive access, possession of technology for double usage, infractions of contents (copyright and intellectual property rights, child pornography), infractions of assets (falsehood contained in an electronic document, computer technology fraud and damages) and some general principles, such as that of the liability of legal persons. In short, this work comes as an attempt to discover the reasons that inspire such offences and their adaptation to the rules of play within the European Union and Spanish Constitutional and Criminal Law.
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Català
Óscar Morales 