Applicability of Traditional Substantive Criminal Law Concepts to Contemporary Cybercrime Igor Vuletić, Ph.D. assistant professor Department of criminal sciences Faculty of law Osijek

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 , 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  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