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Unauthorised Access to or Modification of Restricted Data Held in a Computer

Unauthorised access to, or modification of, restricted data held in a computer is an offence under section 308H of the Crimes Act 1900, which carries a maximum penalty of 2 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You caused access to, or modification of, data held in a computer
  2. You did so intentionally
  3. You were not authorised to cause that access or modification
  4. The data was restricted data, and
  5. You knew the data was restricted data.

‘Data held in a computer’ means:

  1. Data entered or copied into a computer
  2. Data held in any removable storage which was in a computer for a time, or
  3. Data held in any data storage device on a computer network of which a computer forms a part.

A ‘data storage device’ is any thing, including a disk or file server, which contains or is designed to contain data for use by a computer.

‘Access’ to data held in a computer means:

  1. The display of data by the computer or any other output of the data
  2. The copying or moving of the data to any other place in the computer or to any data storage device, or
  3. The execution of any program.

‘Modification’ of data held in a computer means:

  1. The alteration or removal of data, or
  2. The addition of data.

Your actions were ‘unauthorised’ if you were not entitled to cause them however, your actions are not unauthorised merely because you had an ulterior motive for them, or if:

  1. You were an ‘authorised person’ such as a police or other law enforcement officer
  2. The computer disk, credit card or other device was in your lawful custody, and
  3. Your actions were to preserve, or to prevent the concealment, fabrication, destruction or loss of, evidence of any offence.

‘Restricted data’ means data held in a computer to which access is restricted by an access control system associated with a function of the computer.

Proceedings for the offence must be commenced no later than 12 months from the date of the alleged commission of the offence.

Duress is a defence to the charge.

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