Unauthorised interference with systems (Article 361 of the Criminal Code): what it is and how to build a defence

Vitalii Petryk

Attorney at law · Lexon (LF LEXON)

Article 361 of the Criminal Code is the principal offence in the field of cybercrime. Below attorney Vitalii Petryk explains what it covers and how a defence is built.

What Article 361 provides for

Article 361 punishes unauthorised interference with the operation of information (automated), electronic communication and information and communication systems and electronic communication networks. It concerns access to or impact on such systems without permission, which may result in leakage, loss, forgery, blocking or alteration of information. The current wording covers a wide range of digital systems and networks.

Aggravating features and punishment

The sanction depends on the part of the article and the consequences. Aggravating features may include, in particular, causing significant damage, repetition, commission by a group of persons upon prior conspiracy, and interference with especially important systems. Where such features exist the punishment is more severe, up to imprisonment. The amount of damage and the classification of the acts are therefore matters requiring careful work by the defence.

Related offences

Alongside Article 361, related provisions are applied: creation or distribution of malicious software (Article 361-1) and unauthorised acts with information by a person entitled to access it (Article 362). Correct classification matters, because both the elements of the offence and the sanction depend on it.

Lines of defence

• Absence of intent: the offence is intentional, so it matters whether the person was aware that the actions were unauthorised.
• Existence of permission: authorised access, testing with the owner consent, contractual grounds.
• Disputed unauthorised nature: the scope of granted access may have covered the disputed actions.
• Amount of damage: it often determines the classification, so proving it is critical.
• Admissibility of electronic evidence: logs and data from devices and networks must be obtained lawfully, otherwise they can be challenged.

What to do if you have been served with a notice of suspicion

Give no explanations on the merits without a lawyer. Preserve everything confirming the lawfulness of your actions: contracts, permissions, correspondence, technical logs. Involve a defence lawyer as early as possible, because the first steps often determine later opportunities.