Posted on Categories cybersecurity, litigation

Do we need a special court for cybercrime cases?

The City of London Corporation announced in October 2017 that it would establish a new court in London for dealing with cybercrimes. This will reaffirm London’s status as a world financial centre and the best place to run businesses and solve disputes. Other states are also considering establishing such courts. In our view, Poland should not fall behind and should set one up too.

Our firm has seen an increase in cybercrime litigation cases, particularly over the last two years. Examples are: manipulating e-mail correspondence in order to change the details of transfers of funds, phishing, security breaches in servers and theft of confidential data, attacks on devices connected to the internet, malware, thefts of cryptocurrencies on deposit with cryptocurrency exchanges and public wallets, and fraudulent operations of algorithms on various websites.

This should not come as any surprise. It is a natural consequence of the continual digital transformation of our economic and social lives. The more things we do online, the more we become prone to various cyberspace threats. The problem is, though, that even if we make efficient use of available technologies, we barely notice the technical aspects of how they operate. Meanwhile, an understanding of the technical issues is essential for succeeding with cases that involve new technology.

To be able to resolve a case, one must understand how a particular technology works. This helps to establish the types of evidence that could be useful, how quickly they could be secured (to prevent their loss) and how they might be secured them (to ensure their credibility). This also helps to clarify a whole case to the judge, so that he might understand it better and make the right decisions.

Over the last few years, law firms have set up special interdisciplinary task forces focussing on cybercrime. The police and the prosecution service have also established units that specialise in such crimes. Regrettably, the judiciary have not done the same. The most complicated cases involving the newest technologies are still given to regular judges in civil divisions, handling daily traditional civil, family and inheritance matters. The need to explain all of the intricacies of a new technology to a judge is challenging in the limited time that is usually available.

Therefore, there is a need for a serious debate on setting up a special court for new technology cases. An incentive should be the growing popularity of cybercrime courts around the world and the discourse on using artificial intelligence to solve disputes. Moreover, the establishment of a court that specialises in a specific area would not be a new development in Polish jurisdiction. Other dedicated courts have been successfully functioning in Poland for a number of years, such as antitrust courts (the Court of Consumer and Competition Protection) and the EU trademarks court (Court of EU Trade Marks and Designs).

In our view, the establishment of a cyber court would benefit the judiciary for several reasons. Primarily, because such a court could bring together judges possessing the broadest knowledge of new technologies. This they could improve not only by participating in specialised training courses, but also by having to review new precedent-setting cases on a daily basis. It would ensure that newtech cases would be resolved by persons with an in-depth understanding of new technologies. Not all cases would require that the new technology is explained in detail, such as for instance with blockchain. Basically, it would be sufficient just to clarify all of the events to the judge. As a comparison, upon reaching court, car accident cases do not start with presentations on traffic rules and vehicle mechanics. A good and thorough understanding of the subject could also lead to faster and more efficient proceedings and decisions being issued sooner. Courts would know which evidence to dismiss as useless and be more willing to order the securing of digital evidence.

The unquestionable advantage of such a specialised court would be the increase of the judicature’s role in regulating new technologies. The fact that new technologies are developing extremely rapidly means that lawmakers cannot keep pace with them or draw up  apposite laws. Ultimately, it is judges and advocates who have to solve cases which lie outside the normal sphere of regulation. Traditional solutions then become essential, which well suits newtech cases. A specialised court would naturally attract specialised lawyers and would become a forum for exchanging views and for various interests. Judges could rely on all of that to arrive at their decisions, taking into account various interests. The law would not require frequent amendment and case-law would become firmer and more stable.

A new specialised court could be furnished with appropriate technologies that would enable  better management of cases and their more efficient presentation. Admittedly, Polish courts are in the process of implementing various IT solutions, but those changes are not happening fast enough. Documents are still being sent through traditional post, case files are placed on display and cases are described verbally, with no possibility of giving computer presentations. A new court could provide secure conditions for the efficient communication and presentation of electronic evidence.

A cyber court would have many advantages. Above all, it would strengthen Polish jurisdiction and make it approachable and predictable for the newtech sector. Polish judicature would join the forefront of the technology revolution and would set the legal rules that it must follow. Legal stability could encourage investments in new technologies. A specialised and modern court, with qualified lawyers at its disposal and furnished with appropriate technologies, could become an attractive venue for court disputes, not just concerning Polish jurisdiction. Therefore, this discussion is an initial contribution, among many others that must necessarily follow, towards the establishment of a new cyber court.

Aleksandra Lisicka, Łukasz Lasek