10 years in prison for using someone else's payment card - changes in the penal code
The amendment to the Penal Code provides for the addition of a new art. 279a. According to it, anyone who makes a payment transaction using electronic money, without the consent of the person authorized to dispose of this money, is subject to the penalty of imprisonment from one to 10 years.
-The draft regulation will comprehensively apply to making a payment transaction, in all possible forms, in particular using an ATM card, payment card, debit card, mobile phone, making transfers in online banking, etc. - we read in the justification of the draft. The Ministry of Justice, its author, above all, wants to better protect those whose proximity card was stolen. He claims that there are currently problems with the qualification of this crime. Lawyers point out, however, that the provision itself is imprecise, because it does not mention payments using cards or applications. As a result, it will not work and will be a legal bummer. They also have doubts about the amount of the penalty and the need for change.
Electronic money and payment instruments
In the justification for the amendment, the Ministry refers to the definition of electronic money from Art. 2 point 21a of the Act on Payment Services. Then it indicates that it is about the protection of online banking customers and customers using payment cards linked to bank accounts. From the legal point of view, these are two different institutions. Pursuant to the Act on Payment Services, electronic money means values whose transfer takes place without the intermediation of banks. These are less and less used, e.g. prepaid city cards or electronic purses. Meanwhile, the author of the draft is more concerned with regulating crimes committed with the use of cards or payment applications, i.e. according to the Payment Instruments Act.- The drafted Art. 279a creates interpretation doubts - says Łukasz Obzejta, legal adviser, co-author of the book "Payment Cards in Poland". He adds that in its current form, this provision penalizes only criminal transactions using electronic money, whose presence on the market is marginal. Meanwhile, the scope of penalization should be much broader and include, above all - rightly indicated in the justification - criminal transactions with the use of payment cards and procedures enabling payment transactions to be made in the Internet environment. It seems, therefore, that the intention of the legislator described in the explanatory memorandum was incompletely expressed in the content of the draft provision, stresses Łukasz Obzejta. The new article should refer to payment instruments - according to the Act, it is an individualized device or a set of procedures agreed by the user and the provider, used by the user to submit a payment order.
- I have the impression that the author of the justification used the definition of "electronic money" thinking that it is the broadest definition, which will cover all possible cases (payment cards, etc.) - says Łukasz Obzejta. - Unfortunately, that's not the case. Therefore, it would be better to use the definition of a payment instrument. However, the use of this definition also raises some doubts as to non-individualized instruments at the time of purchase, eg prepaid cards. So, MS probably still has some work to do in this area - believes Łukasz Obzejta.
The disputed legal loophole
of the Ministry of Justice emphasizes, above all, the current problems with qualifying payments with a contactless card, against the will of its owner. Although the Supreme Court in the judgment of March 22, 2017 recognized it as burglary (Article 279 § 1 of the Penal Code), but there were voices that when a thief brings someone else's card to the terminal, he only deceives the seller. here - apart from fraudulent activity - any "hacking" or even "breaking" of electronic security, since both the card itself and the security stored on it are original and do not require the intervention of the person using this electronic payment instrument - argues Dariusz Czajkowski, judge of the Supreme Court. He is, among others postulated the creation of a new type of crime in the penal code. In the justification, the ministry emphasizes that the doctrine clearly indicates that burglary is the taking of things after removing an obstacle, e.g. a closed door. Therefore, in order to eliminate these doubts, a new provision is proposed. It is indeed a response to a specific legal gap in this respect. Currently, penalizing such behavior in the absence of a specific regulation requires the courts to "adjust" other criminal law provisions. The situation should be simpler, and the proceedings in such cases should be faster, believes Daniel Kozłowski, attorney at Kochański Zięba.
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Not everyone agrees with this view, however. Some lawyers believe that the interpretation of the Supreme Court is sufficient. – If Art. 279a k.k. is to be introduced in order to facilitate the legal qualification of contactless payments with someone else's card, it is completely unnecessary - believes Dr. Mikołaj Małecki from the Faculty of Law and Administration of the Jagiellonian University. - This behavior is a classic burglary, as it was qualified by the Supreme Court and I fully agree with this view. Therefore, the current legal status allows for the correct qualification of this type of activity - he emphasizes.
Łukasz Obzejta does not fully agree with this approach. - Taking into account the previous "gymnastics" that the courts had to perform in order to somehow qualify fraudulent transactions using payment cards, electronic banking, etc., I would expect that this provision will actually exclude these doubts. However, it was created in isolation from the definition of the Payment Services Act and in its current form would not help criminal courts, and would even open a new chapter in the field of qualifying "gymnastics" - emphasizes Łukasz Obzejta.
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Too high penalty
Lawyers also pay attention to the amount of the penalty. – There are doubts about a rather drastic sanction for a crime committed. This is only a penalty of imprisonment from one to 10 years - says Daniel Kozłowski. - It seems that for crimes of this type, if their size is small, the legislator should also allow for the possibility of imposing a fine or restriction of liberty - adds Daniel Kozłowski.
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Mikołaj Małecki notes that the drafter also wants to introduce a new provision on particularly brazen theft in Art. 278a k.k. - If someone steals with a stolen payment card in a store, in front of other people, it seems to be showing enough audacity to fall under this rule as well. As a consequence, there will be as many as three provisions that will apply to identical behavior at the same time. It has nothing to do with proper legislation.
Phishing and other crimes
The Ministry argues in the justification that the new regulation will also facilitate the fight against other crimes, e.g. at the card inlet in the ATM, a device for copying data from the magnetic stripe of the payment card (the so-called skimmer), which makes it possible to duplicate such a card, or phishing, in which the criminal impersonates another person or organization in order to extort specific information (e.g. login details in banking website).
- It seems that the "new" offense is already covered by the existing regulations, which is admitted in the explanatory memorandum, says Łukasz Bucki, a lawyer at Gabrysiak & Partners. - It is impossible to say that so far hacking or skimming have not been punished. Nevertheless, I hope that in court practice it will turn out that the new provision will allow for more efficient prosecution of perpetrators and will remove doubts as to the legal qualification of crimes committed with the use of new technologies. Practice shows that the law often does not keep up with them, but this does not mean that it is not worth trying, adds Łukasz Bucki. Currently, the Penal Code does not treat crimes related to electronic banking as a separate category. Although in the special part there are provisions that allow you to prosecute the perpetrators. It's Art. 267 k.k. (unlawful obtaining of information), art. 268 § 1 and § 2 k.k. (making it difficult for an authorized person to get acquainted with information, destroying information), art. 268a § 1 k.k. (destruction, damage, removal, alteration or obstruction of access to IT data), art. 286 § 1 k.k. (fraud), art. 287 § 1 k.k. (computer fraud) and Art. 190a § 2 k.k. (impersonating another person, using their image or other personal data in order to cause their property or personal damage).
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