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1 Introduction

1 The use of computers in society has become widespread. As the Law Commission noted in Electronic Commerce: Part One (NZLC R50 1998) business-to-business (as opposed to business-to-consumer) commerce over the Internet³ reached an estimated US$8 billion in 1997. This was 10 times the 1996 total. The Law Commission also noted that by the year 2002 an estimated US$327 billion will be spent on business-to-business commerce over the Internet. Approximately 10 percent of major New Zealand organisations expect to spend more than $500,000 each in setting up electronic systems in the next two years (para 5). The National Business Review recently reported that, according to Intel, electronic commerce will be worth US$1 trillion by 2002 (NBR, February 26 1999, 55).

2 As at 1 September 1995 there were no company domain names registered on the Internet in New Zealand, yet by the beginning of 1998 there were over 14,000. The New Zealand world wide web domains increased from just under 4,000 as at 1 February 1997 to nearly 9,000 in March 1998 (See Oggi Advertising Ltd v McKenzie [1999] 1 NZLR 631; (1998) 6 NZBLC 102,567; (1998) 8 TCLR 36). It has been estimated that as many as 40 million people around the world were using the Internet in 1997 and that this figure would rise to 200 million by 1999 (Gripman, 1997).

3 The issue of extending the criminal law to deter computer misuse has recently assumed prominence both in New Zealand and overseas. In the late 1980s several countries investigated the need for the creation of criminal offences specifically directed at computer misuse. The Scottish Law Commission ( Report on Computer Misuse (Scot Law Com, No 106) 1987) the Attorney-General’s Department of Australia (Review of Commonwealth Criminal Law: Interim Report, Computer Crime, November 1988) and the Law Commission of England and Wales (Criminal Law: Computer Misuse (Law Com. No 186) 1989) recommended the adoption of criminal offences directed at computer misuse. These recommendations prompted new legislation in the United Kingdom and Australia making computer misuse a criminal offence. Legislation has also been passed in Canada and Singapore relating to computer misuse (see Appendix A where this legislation is reproduced). Also, the South African Law Commission is currently considering issues in relation to computer related crime (see South African Law Commission, Computer Related Crime, Issue Paper 14, August 1998).

4 In New Zealand, the Crimes Bill 1989 proposed the creation of two offences in relation to computer misuse; accessing a computer for a dishonest purpose and damaging or interfering with a computer system. The Crimes Consultative Committee completed its report on the Crimes Bill in April 1991 (The Crimes Consultative Committee, Crimes Bill 1989, Report of the Crimes Consultative Committee (April, 1991)). The Committee proposed a number of changes to the clauses relating to computer misuse recommending that there should be three separate offences dealing with computer misuse; accessing a computer and obtaining a benefit or causing a loss, accessing a computer with intent to obtain a benefit or cause a loss, and a summary offence of unauthorised access to a computer punishable by a maximum of 6 months imprisonment (75–77).

5 The Crimes Bill 1989 was never enacted. Therefore, New Zealand has no criminal offence aimed squarely at computer misuse. Nevertheless, there are a number of statutory provisions within our criminal law which would address some of the computer misuse issues we have raised. For example:

• Interception of private communications⁴ are dealt with in ss 312B–312Q Crimes Act 1961, ss 10 and 18 of the International Terrorism (Emergency Powers) Act 1987, and ss 14 –28 of the Misuse of Drugs Act 1978.
• So far as gaining access to electronic data is concerned, s 248 of the Crimes Act 1961 relates to impersonation and therefore covers part of the continuum involving access to electronic data.
• Use of electronic data is currently dealt with by provisions relating to theft (s 220 Crimes Act 1961) although, as we pointed out in Dishonestly Procuring Valuable Benefits (NZLC R51 1998) there is a lacuna in the law in relation to theft of an intangible thing such as a chose in action. Section 218 of the Crimes Act 1961 deals with theft of electricity. Section 264 of the Crimes Act 1961 (with a restrictive definition of the term “document” contained in s 263 of the same Act) deals with forgery of documents. Finally, there are the general fraud provisions contained in s 229A of the Crimes Act 1961.
• Fraudulent alteration or destruction of the document may be covered by ss 231 and 266A of the Crimes Act 1961. The offence of willful damage under s 298 (4) of the Crimes Act 1961 may also be relevant.

6 We discuss later in this report whether the existing law is sufficient to deal with computer misuse problems and, if not, what type of solution may be preferable.