Applicability of Traditional Substantive Criminal Law Concepts to Contemporary

Cybercrime

Igor Vuletić, Ph.D.assistant professorDepartment of criminal sciencesFaculty of law Osijekivuletic@pravos.hr

Introduction The fifth challenge of cybercrime

(non)-material nature of crimes, lack of adequate knowledge and education of lawyers, lack of relevant decisions in practice...

Cybercrime-any crime facilitated or committed using a computer, network, or hardware device (Gordon/Fox)

Conventional crimes in digital form and new crimes

“Ordinary” (convenctional) crimes Fraud by internet or e-mail, forgery of

digitally stored data, cyber bullying, cyber pornography, grooming of children, copyright violation etc.

Same purpose, different modus operandi

Offenders are more efficient

Problems: overlap, imprecise duplication, nullum crimen sine lege stricta

New offenses

Hacking, phishing

Determination (definition) of legal interests and drawing limits to the scope of criminalization – important challenges for criminal law!

Principle of equality

Actus reus Offenses of abstract endangerment, mostly

delicta communia

Confusion in special part of criminal law

Immaterial nature of offenses

Problems with determination of right holders

Mens rea

Mostly intentional offenses

Is dolus eventualis sufficient?

Negligence is punishable only exceptionally

Preparatory acts Delicta preparata and delicta sui generis

Ratio legis – elusive character of cyber crime

What if there is no criminalization of preparatory acts in certain system?

Are sanctions too severe?

Criminalization of possession

Frequently defined as a criminal offens

Problem with child pornography – should mere viewing of pornograph material on the net be considered as “possession”?

Indirect perpetration

Computer viruses distributed through e-mail

Indirect perpetrator and direct perpetrator (mistake of facts?)

Responsibility of Internet Service Providers (ISP)

Problems with terminology

To what wxtent may ISP be responsible?

The kind of responsibility under general rules of substantive criminal law?

EU E-Commerce Directive (2000) – privilege for ISP?

Sanctions

Specific sanctions

Problem of disproportion?

Potential conflict of jurisdictions

Sveral possible links

Systems should avoide traditional connection of jurisdiction to territory

Systems should also avoid creating special type of universal jurisdiction

Coclusions

Traditional concept of criminal law cannot be simply transmitted to cybercrimes without further analysis

Many of these concepts require redefinition

Criminal lawyers must specialise in computer and internet technology