International review of criminal policy - Nos. 43 and 44/SUBSTANTIVE CRIMINAL LAW PROTECTING THE HOLDER OF DATA AND INFORMATION/Background

A. Background

84. The criminal codes of all countries have, up to the present, predominantly protected tangible and visible objects. Although protection for information and other intangible things or values existed before the middle of the twentieth century, it did not play an important role until very recently. The last few decades have seen significant changes: the development from industrial to post-industrial society, the increasing value of information in economics, culture and politics, and the growing importance of computer technology have led to legal challenges and new legal responses to information law. In the 1970s, the resulting change of paradigm, from corporeal to incorporeal objects, began to touch substantive criminal law, in several waves of computer crime legislation.

85. A new doctrine of criminal information is emerging in the area of al legal science, founded on the still-developing concepts of information law and the law of information technology. In accordance with modern cybernetics and informatics, information law now recognizes information as a third fundamental factor in addition to matter and energy. Based on empirical analysis, this concept evaluates information both as a new economic, cultural and political asset and as being specifically vulnerable to unique forms of crime.

86. It is obvious in the new approach that the legal evaluation of corporal objects differs considerably from the evaluation of incorporeal (information) objects. First, there is an important conceptual distinction between information and data that is both technologically and legally relevant. Information is a process or relationship that occurs between a person's mind and a stimulus. Data, whether in corporeal or incorporeal (e.g. electromagnetic impulse) form, constitute a stimulus. Data are merely a representation of information or of some concept. Information is the interpretation that an observer applies to the data. Different information may be received from the same data, depending on their interpretation. Thus, when data are destroyed or appropriated, it is the representation that is destroyed or appropriated and not the actual information, idea or knowledge. The latter may still subsist in a person's mind or in another copy of the data.

87. The second difference concerns the protection of the proprietor or holder of corporeal and incorporeal objects. Whereas corporeal objects are more exclusively attributed good that flows freely in a free society. It is not itself subject, therefore, to exclusive protection in the same way as tangible property. A third difference between the legal regimes of tangibles and intangibles is that, in protecting information, not only must one consider the economic interests of its proprietor or holder, but one must also preserve the interests of those persons concerned with the contents of the information. This aspect results in new issues of privacy protection, which is dealt with in chapter III.

88. Paragraphs 89-115 investigate how far the various national systems protect the holder of information and paragraphs 116-126 examine activities undertaken in this field of law on the international level.