2.2 Dangerous Code
Now let us turn to the common law crime of malicious damage to property and how it could relate to dangerous code such as Viruses, Worms and Trojan horses. Dangerous refers to any computer programme that causes destruction or harm and has been programmed in such a way with malicious intent. Ebersoehn & Henning (2000, p.111) defines virus as:
‘A piece of programming code usually disguised as something else that causes some unexpected and , for the victim usually undesirable event and which is often designed so that it is automatically spread to other computer users.’
They go on further and classify them as File infector viruses, system or boot record viruses and macroviruses. It must be noted that viruses can either be decimated or ‘contracted’ by exchange of various media or by receipt in an e-mail.
Ebersoehn & Henning (2000, p.112) define a worm as:
‘a type of a virus….that situates itself in a computer system in a place where it can do harm’.
The difference between a virus and a worm is that the former has to be activated by the user and that worm on the other hand gains access to the computer and search for other internet locations infecting them in the process.
Ebersoehn & Henning define a Trojan as:
‘A destructive computer programme disguised as a game, a utility or application. A Trojan horse does something devious to the computer system while appearing to do something useful’ (ibid).
In my view, the court’s inherent power to develop the common law relating to the creation and/or decimation of the above dangerous codes could have resulted in successful prosecution relating to malicious damage to property. The requirements of malicious intent and fault could easily be attributed in the form of dolus directus, dolus indirectus or even dolus eventualis and in some instances luxuaria (conscience negligence) could also be used where the author of such a programme failed to take precautions to ensure that it does not fall in the public domain (even if it was for research purposes).
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