Data change

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In Germany, changing data is an offense in accordance with Section 303a of the Criminal Code ( StGB ) that is punishable by imprisonment for up to two years or a fine.

definition

Any unlawful modification, deletion, suppression or rendering unusable of third-party data is a data change according to German criminal law.

text

The wording of § 303a StGB is (since the last change on August 11, 2007):

(1) Anyone who unlawfully deletes, suppresses, makes unusable or changes data (Section 202a, Paragraph 2 - Spying on data ) will be punished with imprisonment for up to two years or with a fine.

(2) The attempt is punishable.

(3) For the preparation of a criminal offense according to paragraph 1, § 202c applies accordingly.

Acts

Deletion is the irretrievable obscuring of data, i. H. the data is not recoverable. By suppressing occurs when the claimant access was impossible on its data. Making unusable means that data can no longer be used as intended. There is a change in data when its information content changes.

Constituent elements

The standard records changes in the content of data. The act is completed as soon as the effect is successful. There is no need for financial loss. It does not have to be third-party data, but data that is subject to a third-party right of use. According to § 303a StGB, data changes in the purely internal area are not possible if the person acting had extensive access to the changed data due to his legal position. Only data that is assigned to another is protected. A criminal act only exists if the offender's act relates to third-party data, i.e. the other person's immediate right to processing, deletion or use exists. The element of illegality does not apply if the perpetrator himself is the person authorized to dispose or acts on the data with the consent of the person authorized to dispose. In this respect, the permission to use the data acts as an agreement that excludes the facts.

Criminal complaint

Pursuant to Section 303c of the Criminal Code, in the cases of Sections 303 to 303b of the Criminal Code, the offense is only prosecuted upon request , unless the prosecuting authority considers ex officio intervention to be necessary due to the special public interest in prosecution. If an application is made, the prosecuting authority will only bring charges if it affirms a (simple) public interest ( Section 376 of the Code of Criminal Procedure). Otherwise, the injured party has the option of filing a private suit ( Section 374 (2) of the Code of Criminal Procedure).

Offenses recorded in the police crime statistics (Sections 303a, 303b StGB)

Number of offenses
( §§ 303a, 303b StGB )
in Germany (PKS 2003-2015)
2003 1,705
2004 3.130
2005 1,609
2006 1,672
2007 2,660
2008 2,207
2009 2,276
2010 2,524
2011 4,644
2012 10,587
2013 12,766
2014 5,667
2015 3,537
2016 4,422
2017 3,596
2018 2,875
From 2014 only recorded if there are concrete indications
of an offense within Germany.

In 2018, the German police crime statistics (PKS) recorded a total of 2,875 offenses involving data alteration or computer sabotage.

In terms of computer crimes, male adult suspects over the age of 21 predominate.

The exact extent of the offenses cannot be determined using statistics (PKS, convict statistics, etc.). Due to different recording periods / dates and other influencing factors, these statistics are not comparable in Germany.

criticism

In jurisprudence, the provision was referred to as a criminal offense "without a recognizable core of injustice".

In the opinion of the Federal Council on the draft of the Criminal Law Amendment Act to combat computer crime , it was criticized that Section 303a of the Criminal Code was often criticized for its considerable vagueness (Art. 103 II of the Basic Law) . The indeterminacy relates e.g. B. to the question of how the right to dispose of data is to be determined. This problem is largely unresolved, especially with data in networked systems. This leads to concerns about the constitutionality of the norm. However, it seems questionable whether the legislature is currently able to solve the problem. In the legal literature, no solution has so far been able to establish itself clearly, and the problem does not seem to play a major role in legal practice.

See also

Web links

Individual evidence

  1. ↑ Wolfgang Mitsch : Criminal Law Special Part 2 . Springer, 2001, ISBN 3-540-41266-2 , p. 201.
  2. ↑ Horst Speichert: Practice of IT law . Vieweg Friedrich + Sohn, 2004, ISBN 3-528-05815-3 , p. 313.
  3. ↑ Kai Kochmann: Protection of “know-how” against spying out product analyzes . Gruyter, 2009, ISBN 3-89949-686-8 , p. 149.
  4. ↑ Mark A. Zoeller: Criminal Law Special Part I . Berliner Wissenschafts-Verlag, 2007, ISBN 978-3-8305-1353-7 , p. 184.
  5. ↑ Federal Criminal Police Office : Police crime statistics 2015 - time series - information on the time series. (PDF; 92KB) p. 15 , accessed on June 14, 2019 .
  6. ↑ Federal Criminal Police Office : Police crime statistics 2018. Retrieved on June 14, 2019 .
  7. ↑ Eric Hilgendorf : Right through wrong? Intercultural Perspectives . In: Juristische Schulung (JuS), issue 9/2008, pp. 761–767 (p. 766 fn. 59).
  8. ↑ Eric Hilgendorf: Data change . (PDF; 44 kB) In: Brief statement on the draft of a criminal law amendment law to combat computer crime for the public hearing in the Legal Committee of the German Bundestag on Wednesday, March 21, 2007, p. 7, accessed on July 5, 2011.