Restriction of access to websites through the use of criminal-law mechanisms: A comparative legal aspect

Abstract

This article examines the specific features of restricting access to websites (web resources) on the Internet through the application of criminal-law mechanisms provided for by the Criminal Procedure Code of Ukraine. The authors analyse the legal nature of a website as an object of intellectual property rights through the lens of Ukrainian civil legislation, as well as its qualification as a potential object of seizure in criminal proceedings. The article assesses the possibility of imposing seizure on websites as objects of intellectual property rights in situations where web resources are used for the commission of criminal offences.

Within the framework of comparative legal analysis, the article explores approaches to restricting access to websites through criminal-law mechanisms in combination with the civil in remforfeiture mechanism in the United States of America. The authors identify the key distinctions between the approaches to website blocking in the Romano-Germanic legal tradition (based on the Ukrainian model) and the Anglo-Saxon legal system (based on the U.S. model), by comparing the existing mechanisms of website access restriction, including the combined use of criminal-law and civil-law instruments of seizure and forfeiture in the United States, and by analysing the characteristics of Ukraine’s criminal-law mechanism as reflected in national legal practice.

The article further provides an in-depth analysis of the current Ukrainian case law concerning the seizure of websites through the seizure of intellectual property rights arising for Internet users when accessing and using particular web resources. This is examined through the prism of the imperative method of legal regulation and the application of state coercion in the context of seizing websites within criminal proceedings.

Through the use of the formal-logical method of legal research, the authors demonstrate the existence of legislative gaps and the absence of a unified approach to defining a website as an object subject to seizure in criminal procedure. Based on these findings, the article proposes amendments to the Criminal Procedure Code of Ukraine aimed at ensuring an appropriate balance between freedom of Internet use and the current needs of criminal justice in protecting society from criminal offences, in line with the purpose of criminal proceedings established in Article 2 of the Criminal Procedure Code of Ukraine.