Should the English Legal System Adopt the US Law of Cyber-trespass?

Abstract

It has become quite common for old legal rules to be used to regulate new technologies. A key example of this is the resurrection of the rarely used trespass to chattels in the US to cover unauthorised access to computer and networks. However, this judicially constructed law has yet to be exported to other common law jurisdictions. This article considers whether the doctrine of ―cyber-trespass‖ should be copied by the English legal system. Although the law of trespass to chattels is similar both sides of the Atlantic, there are certain underlying differences which are critical in the adoption of cyber-trespass, the most notable being the differences in the need for damage to be proved. Towards the end of 2008 there was a flurry of cases against Electronic Arts in the US courts over the use of the digital rights management system SecuROM, the first of these cases includes, amongst other things, that the use of SecuROM constitutes cyber-trespass. This goes beyond the previous uses of cyber-trespass as protecting networks from a very direct trespass to a trespass by means of a CD- or DVD-ROM. This newer use of cyber-trespass will be taken as the point of departure with the article using it to illustrate the suitability of cyber-trespass as a legal doctrine in England. To form a considered conclusion other legal avenues for regulating unauthorised computer and network access in England are discussed, most notably Section 3 of the Computer Misuse Act 1990