Computer Misuse Act 1996

Link to law: http://www.bermudalaws.bm/Laws/Annual%20Laws/1996/Acts/Computer%20Misuse%20Act%201996.pdf

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Computer Misuse Act 1996
The Laws of Bermuda
Annual Volume of Public Acts 1996 : 16

1

63

BERMUDA
1996 : 16

COMPUTER MISUSE ACT 1996

[Date of Assent 1 July 1996]

[Operative Date 1 July 1996]

ARRANGEMENT OF CLAUSES

1 Short title
2 Interpretation
3 Unauthorised access to

computer material
4 Unauthorised access with

intent to commit further
offence

5 Unauthorised
modification of computer
material

6 Meaning of "securing
access", "modification"
and "unauthorised"

7 Significant link with
Bermuda

8 Territorial scope of
inchoate offences

9 Proceedings for offence
under section 3

10 Conviction of section 3
offence as alternative to
section 4 or 5

11 Police powers
12 Forfeiture
13 Evidence

WHEREAS it is expedient to make provision for securing
computer material against unauthorised access and for related matters;

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Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

Short title
1 This Act may be cited as the Computer Misuse Act 1996.

Interpretation
2 (1) References in this Act to any program or data held in a
computer include references to any 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.

(2) In this Act

"Criminal Code" means the Criminal Code Act 1907;

"modification" has the meaning assigned by section 6;

"program" includes part of a program;

"related inchoate offence", in relation to an offence under this
Act, means an offence under section 32, 33, 230 or 231 of the
Criminal Code (attempt, incitement, conspiracy etc) deriving
from such an offence;

"securing access" has the meaning assigned by section 6;

"unauthorised", in relation to access to or modification of any
program or data held in a computer, has the meaning
assigned by section 6.

Unauthorised access to computer material
3 (1) A person is guilty of an offence if

(a) he causes a computer to perform any function with
intent to secure access to any program or data held in
any computer;

(b) the access he intends to secure is unauthorised; and

(c) he knows at the time he causes the computer to perform
the function that that is the case.

(2) The intent a person has to have to commit an offence under
this section need not be directed at

(a) any particular program or data;

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(b) a program or data of any particular kind; or

(c) a program or data held in any particular computer.

(3) A person guilty of an offence under this section is liable on
summary conviction to imprisonment for 6 months or to a fine of $6000
or to both.

Unauthorised access with intent to commit further offence
4 (1) A person is guilty of an offence under this section if he
commits an offence under section 3 above ("the unauthorised access
offence") with intent

(a) to commit a further offence which is punishable on
conviction on indictment by a term of imprisonment of
two years or more; or

(b) to facilitate the commission of such a further offence
(whether by himself or by any other person).

(2) It is immaterial for the purposes of this section whether the
further offence is to be committed on the same occasion as the
unauthorised access offence or any future occasion.

(3) 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.

(4) A person guilty of an offence under this section is liable

(a) on summary conviction to imprisonment for 6 months or
to a fine of $6000 or to both;

(b) on conviction on indictment to imprisonment for 5 years
or to a fine of $20,000 or to both.

Unauthorised modification of computer material
5 (1) A person is guilty of an offence if

(a) he does any act which causes an unauthorised
modification of the contents of any computer; and

(b) at the time when he does the act he has the requisite
intent and the requisite knowledge.

(2) For the purposes of subsection (1)(b)

"requisite intent" is the intent to cause a modification to the
contents of any computer and by so doing

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(a) to impair the operation of any computer;

(b) to prevent or hinder access to any program or data held
in any computer; or

(c) to impair the operation of any such program or the
reliability of any such data;

but the intent need not be directed at any particular
computer, any particular program or data or program or data
of any particular kind, or any particular modification or a
modification of any particular kind; and

"requisite knowledge" is knowledge that any modification which
is intended to be caused is unauthorised.

(3) It is immaterial for the purposes of this section whether an
unauthorised modification or any intended effect of it is, or is intended to
be, permanent or merely temporary.

(4) A person guilty of an offence under this section is liable

(a) on summary conviction to imprisonment for 6 months or
to a fine of $6000 or to both;

(b) on conviction on indictment to imprisonment for 5 years
or to a fine of $20,000 or to both.

Meaning of "securing access", "modification" and "unauthorised"
6 (1) A person secures access to any program or data held in a
computer if by causing a computer to perform a function he

(a) alters or erases the program or data;

(b) copies or moves it

(i) to a different location in the storage medium in
which it is held, or

(ii) to any other storage medium;

(c) uses it; or

(d) has it output from the computer in which it is held
(whether by having it displayed or in any other manner);

and references in this Act to securing access or an intent so to do shall
be construed accordingly.

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(2) For the purposes of subsection (1)(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.

(3) For the purposes of subsection (1)(d)

(a) a program is output if the instructions of which it
consists are output; and

(b) the form in which any such instructions or other data is
output is immaterial (including in particular whether
any instructions are in a form which is capable of being
executed or any data of being processed by a computer).

(4) Access of any kind by a person to any program or data held
in a computer is unauthorised if

(a) he is not himself entitled to control access of the kind in
question to the program or data; and

(b) he does not have consent to such access from the person
who is so entitled.

(5) 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

(a) any program or data held in the computer is altered or
erased; or

(b) any program or data is added to its contents;

and any act which contributes towards causing such a modification shall
be regarded as causing it.

(6) Such a modification is unauthorised if

(a) the person whose act causes it is not himself entitled to
determine whether the modification should be made;
and

(b) he does not have consent to the modification from the
person who is so entitled.

Significant link with Bermuda
7 (1) So long as the circumstances of any offence under section 3
or 5 above show a significant link with Bermuda, it is immaterial for the
purposes of any such offence

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(a) whether any act or other event proof of which is required
for conviction for the offence occurred in Bermuda; or

(b) whether the accused was in Bermuda at the time of any
such act or event;

but there is no need for a significant link to exist for the commission of
an offence under section 3 above to be established in proof of an
allegation to that effect in proceedings for an offence under section 4
above.

(2) "Significant link", in relation to an offence under section 3,
means

(a) that the accused was in Bermuda at the time when he
did the act which caused the computer to perform the
function; or

(b) that any computer containing any program or data to
which the accused secured or intended to secure
unauthorised access by doing that act was in Bermuda
at that time.

(3) "Significant link", in relation to an offence under section 5,
means

(a) that the accused was in Bermuda at the time when he
did the act which caused the unauthorised modification;
or

(b) that the unauthorised modification took place in
Bermuda.

(4) Subject to subsection (5), where

(a) a significant link exists in the case of an offence under
section 3; and

(b) commission of that offence is alleged in proceedings for
an offence under section 4;

section 4 shall apply as if anything the accused intended to do or
facilitate in any place outside Bermuda which would be an offence to
which section 4 applies if it took place in Bermuda were the further
offence in question.

(5) A person is guilty of an offence triable by virtue of
subsection (4) only if what he intended to do or facilitate would involve

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the commission of an offence under the law in force where the whole or
any part of it was intended to take place ("the relevant foreign law"); and

an act or omission which is punishable by or under any
provision of the law in force in any place is an offence under that law for
the purposes of this subsection however it is described.

(6) For the purposes of subsection (5), a person's conduct shall
be taken to constitute an offence under the relevant foreign law unless
not later than 21 days before summary trial of, or on committal for, an
offence under this Act the defence serves on the prosecution a notice

(a) stating that the facts as alleged do not in their opinion
constitute an offence under the relevant foreign law;

(b) showing their grounds for that opinion; and

(c) requiring the prosecution to prove that the conduct does
amount to an offence under the relevant foreign law.

(7) The court may, if it thinks fit, permit the defence to require
the prosecution to prove that the defendant's conduct amounts to an
offence under the relevant foreign law without the prior service of a
notice in accordance with subsection (6).

(8) In proceedings in the Supreme Court, the question whether
the defendant's conduct amounts to an offence under the relevant
foreign law shall be decided by the judge alone.

(9) A notice under subsection (6) may be given to the
prosecution by delivering it, sending it by registered letter, or, in the case
of a prosecution brought by the Crown, by delivering it to the Attorney-
General.

Territorial scope of inchoate offences
8 (1) This section has effect to supplement the provisions of the
Criminal Code in relation to the jurisdiction of the courts of Bermuda to
try offences which do not take place wholly in Bermuda.

(2) A person may be guilty of an offence under section 32 of the
Criminal Code (attempts)

(a) if he does any act in Bermuda which would constitute an
attempt to commit an offence under section 5 of this Act
but for the fact that the offence, if completed, would not
be triable in Bermuda; and

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(b) if what he was attempting would involve the commission
of an offence under the law in force where the whole or
any part of it was intended to take place;

and subsections (5) to (9) of section 7 apply for the purposes of this
subsection as they apply for the purposes of section 7(4).

(3) A person may also be guilty of an offence under section 32
of the Criminal Code if he does any act in any place outside Bermuda
which constitutes an attempt to commit an offence under section 5 of
this Act.

(4) A person may be guilty of an offence under section 33 of the
Criminal Code (soliciting, inciting or attempting to procure offence) if in
any place outside Bermuda he solicits, incites or attempts to procure
another person to commit an offence under this Act.

(5) A person may be guilty of an offence under section 230 of
the Criminal Code (conspiracy) if he conspires in any place outside
Bermuda with any other person to commit an offence under this Act, and


(a) any party to the conspiracy (or his agent) did anything in
Bermuda in relation to it before its formation or did or
omitted to do anything in Bermuda in pursuance of it; or

(b) at least one of the parties to the conspiracy became a
party in Bermuda (either directly or through his agent).

(6) In proceedings for an offence under section 231(1) of the
Criminal Code (conspiracy to commit offence outside Bermuda), where
the principal offence within the meaning of that provision is an offence
under this Act

(a) subsections (5) to (9) of section 7 shall apply for the
purposes of that offence as they apply for the purposes
of an offence triable by virtue of section 7(4); and

(b) section 231(2) of the Criminal Code (defence to prove
action not offence under foreign law) shall not apply.

Proceedings for offence under section 3
9 (1) Proceedings for an offence under section 3 may be brought
within a period of six months from the date on which evidence sufficient
in the opinion of the Attorney-General to warrant the proceedings came
to his knowledge.

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(2) But no such proceedings shall be brought more than three
years after the commission of the offence.

(3) A certificate purporting to be under the hand of the
Attorney-General and specifying the date upon which such facts first
came to his notice shall be evidence that such facts first came to his
notice on that date.

(4) This section has effect in place of section 452 of the
Criminal Code (limitation of time for commencing summary
prosecutions).

Conviction of section 3 offence as alternative to section 4 or 5
10 (1) If on the trial on indictment of a person charged with

(a) an offence under section 4; or

(b) an offence under section 5 or any related inchoate
offence,

the jury find him not guilty of the offence charged they may find him
guilty of an offence under section 3 or any related inchoate offence if on
the facts shown he could have been found guilty of that offence if
proceedings had been brought within the time limit specified in section 9
for that offence.

(2) The Supreme Court shall have the same powers and duties
in relation to a person who is by virtue of this section convicted before it
of an offence under section 3 or any related inchoate offence as the court
of summary jurisdiction would have on convicting him of the offence.

(3) This section is without prejudice to sections 492 to 499 of
the Criminal Code (conviction of alternative indictable offence).

Police powers
11 (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.

(2) Any power of seizure conferred on a police officer who has
entered premises by virtue of a warrant issued under section 464(1) of
the Criminal Code (search and seizure of evidence etc) 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

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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).

(3) Where the items seized by a police officer under section
464(1) of the Criminal Code include computers, disks or other computer
equipment, the magistrate before whom those items are brought in
accordance with section 467 of the Criminal Code (detention and
disposal of property seized) 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

(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,

(b) requiring copies of those copies to be given to any person
charged in relation to the offence ("the accused person"),
and

(c) requiring the items to be returned within a period of 72
hours;

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.

(4) Subsection (3)(b) shall not apply

(a) in relation to copies of any items returned to the accused
person; or

(b) where the court is satisfied that

(i) the provision of copies would substantially
prejudice the investigation or prosecution, or

(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.

(5) Any copies made pursuant to subsections (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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Forfeiture
12 (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

(a) has been used for the purpose of committing, or
facilitating the commission of, the offence in question or
any other such offence, or

(b) was intended by him to be used for that purpose,

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.

(2) In considering whether to make an order in respect of any
property the court shall have regard

(a) to the value of the property, and

(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).

Evidence
13 In proceedings for an offence under this Act, or any related
inchoate offence, the fact that an offence involving interference with a
computer is alleged to have been committed shall not of itself be
sufficient to prevent computer records from being admissible in the
proceedings on the basis that the condition in section 43B(2)(c) of the
Evidence Act 1905 (which requires appropriate measures to be in force
for preventing unauthorised interference with the computer) has not
been satisfied.

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