Civil action may hit cyber thugs harder than criminal laws
By Sandra Rossi
Date: May 14, 2003
Civil remedies are a more viable legal solution to cyber crime for the enterprise than criminal prosecution, according to
IT security consultant and forensics expert Ajoy Ghosh. Tort law (specifically the tort of negligence) is likely to
pressure large market sectors such as Internet service providers (ISPs) to adopt security measures that prevent cyber
criminals from plying their trade and more readily identifies them, he said. "Proponents of a tort law framework cite the
inadequacies of law enforcement agencies to identify, locate and prosecute cyber criminals coupled with the rapidly
developing infrastructure and judicial conundrums of cyberspace," Ghosh said.
From a victim's perspective, he said the rationale for pursuing civil rather than criminal remedies offer advantages such as confidentiality, standard of proof that does not require evidence 'beyond reasonable doubt' and a more timely settlement for compensation. Another advantage is corporate liability. "The victim doesn't have to identify a particular individual as the individual hacker since a corporation can be liable for damages either vicariously or through contributory negligence; this also provides the claimant with the ability to access significant damages," Ghosh said.
Alistair MacGibbon, director of the Australian Federal Police High Tech Crime Centre, agrees civil action has a role to play in combating cyber crime. "Civil action has a legitimate role to play but we still want to provide an open door for more people to report computer crime; we don't pretend law enforcement is the only solution," he said.
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