When a closed forum on the Darknet is actually a publicly accessible place

On 10 November 2016, the Court of Appeal of Antwerpen condemned an individual for illegally selling and exporting medicines, as evidenced by his presence and behavior on a Darknet forum. On 28 March 2017, the Court of Cassation dismissed the appeal lodged by the latter who argued that the findings collected by the police were not admissible in court. He claimed that such a forum was private and may only be accessed with the permission of an investigating judge.

However, the Court found that, pursuant to Article 8 of the Belgian Code of Criminal Procedure and Article 26 of the Belgian Act of 5 August 1992 on the office of police, the police forces are entitled to collect evidence from publicly accessible places on the Internet without any further formalities. What they did (i.e. downloading and using a specific software, search engines and a website that monitors the Darknet markets to receive an invite link to the forum) did not alter the nature of a publicly accessible place. Registering on this forum under an alias is also permitted if it does not encourage the commission of a crime.

According to the Court, a place on the internet is not private when the conditions on which access to this place is permitted are purely formal, i.e. without any effective or qualitative control of the entrant. The Court further ruled that, as a result thereof, no prior authorization to perform a network search was required and no hacking was committed by the police.

The case (P.16.1245) can be found on http://www.cass.be