One of the users of the OLX service posted an ad offering his services. The man was engaged in repairing and customizing computers. One of his customers approached him for such services. In addition to the usual PC setup, he also wanted to install a program to record computer activity.
In exchange for money, the man installed SkyLogger, a spyware virus he had downloaded in advance, on the customer’s drive. This program independently, hidden from the user, records all computer activity, including the launch of programs, copies any entered data, monitors the clipboard, makes copies of screenshots and saves all this data in specially created folders, and sends information to e-mail, FTP or a local computer. The defendant knew that this software was a spyware program. That is, he was aware of its malicious capabilities. The man did not stop there and subsequently provided similar spyware installation services to the next customer.
Law enforcement officers considered such actions a crime and qualified them as the sale of malicious software (Part 1 of Article 361-1 of the Criminal Code) and the sale of malicious software committed repeatedly (Part 2 of Article 361-1 of the Criminal Code). Eventually, the case went to trial. The court of first instance found the man not guilty and acquitted him under Art. 361-1 (1) and (2) of the Criminal Code due to the lack of evidence of the alleged crimes.
The court believed that a person should be aware of the harmful properties of the software he distributed. However, no evidence was provided at the court hearing that the defendant was aware of the harmful properties of the program he sold. The defendant also argued that the SkyLogger program was freely available on the Internet, and he did not assume that such software could be harmful.
The Criminal Court of Cassation disagreed with such conclusions, as the trial established that the defendant had considerable experience in repairing and adjusting computer equipment. However, the Court of Appeal upheld the verdict. Eventually, the case reached the Supreme Court.
The Supreme Court overturned the man’s acquittal, stating that the sale of malicious software or hardware (Article 361-1 of the Criminal Code) is a completed crime from the moment at least one such program or hardware device is transferred to another person – even if the program was freely downloaded from the Internet and no harmful consequences occurred. The relevant position was expressed by the panel of judges of the Third Judicial Chamber of the Criminal Court of Cassation of the Supreme Court on May 15, 2024 in case No. 591/4800/17. Part 2 of Art. 361-1 of the Criminal Code provides for up to 5 years in prison.
Source: Judicial and legal newspaper
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