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