One of the users of the OLX service posted an ad offering his services. The man was engaged in computer repair and setup. One of the customers turned to him for such services. In addition to the usual PC setup, he also wanted to install a program to record computer activity.
For a fee, the man installed the SkyLogger spyware program on the customer's drive. This program secretly records all computer activity, including program launches, copies any entered data, monitors the clipboard, takes screen snapshots, saves all this data in specially created folders, and also sends information to email, FTP, or a local computer. The accused knew that this software was a spy program. That is, he was aware of its harmful capabilities. The man did not stop there and subsequently provided similar services for installing spyware to another customer.
Law enforcement authorities considered such actions a crime and classified them as the sale of malicious software (Part 1 Art. 361-1 of the Criminal Code) and the repeated sale of malicious software (Part 2 Art. 361-1 of the Criminal Code). Eventually, the case went to court. The court of first instance found the man innocent and acquitted him of Part 1 and Part 2 of Art. 361-1 of the Criminal Code due to lack of evidence of the committed offenses.
The court considered that the person should be aware of the harmful properties of the software he distributed. However, during the trial, no evidence was provided that the accused was aware of the harmful properties of the program he sold. The accused also argued that the SkyLogger program is freely available on the internet, and he did not believe that such software could be malicious.
The appellate court disagreed with these conclusions, as it was established during the trial that the accused had significant experience in the field of computer repair and setup. However, the Court of Appeals upheld the verdict without changes. Eventually, the case reached the Supreme Court.
The Supreme Court overturned the man's acquittal, stating that the sale of malicious software or technical means (Art. 361-1 of the Criminal Code) is a complete crime from the moment of transferring at least one such program or technical device to another person - even if the program was freely downloaded from the internet and no harmful consequences occurred. this position was expressed by the panel of judges of the Third Judicial Chamber of the Cassation Criminal Court within 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 of imprisonment.
Source: Legal newspaper
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