Extraterritorial Prosecution of Cybercrime
Cybercrime is a prototype of transnational crime. Hence, legislative responses to offenses in global data networks demonstrate quite clearly the attempts of nation states to overcome national boundaries through extraterritorial expansion of criminal law. This project reveals the limits of this approach: it is successful only in limited areas and specific cases and does not lead to a generally applicable model solution for the development of transnationally effective criminal law.
|Project category:||Research project|
|Organizational status:||Sectional project|
|Project time frame:||Project commences: 2005
Project ends: 2006
|Legal system(s):||Numerous legal systems worldwide|
|Structure:||jurisdiction, international criminal law, locus delicti, criminal prosecution, Internet|
- Frank Michael Höfinger [Email]
The dissemination of data, interpersonal communication, and access to networked computer systems do not stop at national borders. This leads to transnational activities not only on the part of criminal offenders but also on the part of law enforcement agencies, which can respond internationally and beyond their own national borders. Two important jurisdictional problems result: The first concerns the problem of the extent to which a country – following the appropriate jurisdictional rules – can declare its national criminal law applicable beyond its own territory. The second poses the question of whether and how a country can conduct investigations in the global cyberspace beyond its own territory– in the form of simple observational measures or by means of online searches, for instance. Within the framework of a research project organized by the University of Tilburg, efforts were made to analyze the situation in different legal systems with respect to these two questions.
The goal of the contribution from the Freiburg Max Planck Institute was to analyze the application of German national criminal law to extraterritorial offenses. Here, problems arise in the context of the dissemination of illegal content if the content is accessible in many countries "with the click of a mouse." In Germany, as in most legal systems, the principle of territoriality is overriding. This principle, however, not only requires clarification in many areas, its practicability has also been seriously questioned. As the number of countries affected by a particular illegal activity increases, the danger of jurisdictional conflicts grows. The actor’s chance of foreseeing the risks of prosecution diminishes in equal measure, especially if the actor’s behavior is considered legal in his or her own legal system but is punishable in another legal system. This is especially true with regard to the dissemination of information in the Internet, as such information can be accessed worldwide. In addition, the scope of the jurisdictional authority of national law enforcement agencies threatens to become overextended unless the principle of territoriality is narrowly interpreted or the agencies are granted the discretionary authority to decide which Internet crimes to pursue and which not to. From the perspective of international law, as well, the exercise of penal authority is problematic if a "minimum contacts" requirement with the territory of the exercising agency is not satisfied.
The solution to this problem in German law is characterized by the principle of ubiquity, according to which an act is committed in the place at which the offender acted or at which the result laid down in the statutory definition of the offense occurred. In the meantime, a consensus has been reached that such a result can be understood not only in the sense of a result crime, but also as other kinds of outcomes if the outcome is covered by the statutory definition of the offense. In the case of Holocaust denial on a foreign server, the German Federal Supreme Court of Justice (Bundesgerichtshof) found it sufficient that the disputed information was capable of endangering the public peace in Germany. This resulted in a far-reaching extraterritorial application of German criminal law. Because this exercise of jurisdiction cannot, however, be enforced via commensurate investigative measures, it cannot lead to an effective model for transnationally effective criminal law. Thus, without harmonization of criminal law and an appropriate international law of cooperation, the problem cannot be resolved.
The English-language country report "Germany" by Ulrich Sieber was published along with the results of the entire project in: Bert-Jaap Koops/Susan W. Brenner (eds.), Cybercrime and Jurisdiction (The Hague, T. M. C. Asser Press, 2006) 183–210.
External Research Partners:
Prof. Susan W. Brenner, Prof. Dr. Roberto Chacon de Albuquerque, Prof. Noel Cox, Dr. Paul de Hert, Pavan Duggal, Dr. Vladimir Golubev, Barrie Gordon, Prof. Dr. Peter Grabosky, Jessica R. Herrera-Flannigan, Dr. Gus Hosein, Prof. Dr. Henrik W.K. Kaspersen, Prof. Dr. Bert-Jaap Koops, Prof. Dr. Jeong-Hoon Lee, Fernando Londoño, Prof. Pauline C. Reich, Henrik Spang-Hanssen, Dr. Gregor Urbas, Dr. Ian Walden, Dr. Martin Wasmeier, Prof. Dr. Giovanni Ziccardi, Rodrigo Zúñiga
- Sieber, Ulrich: Cybercrime and Jurisdiction in Germany. The Present Situation and the Need for New Solutions. In: Bert-Jaap Koops / Susan W. Brenner (ed(s).): Cybercrime and Jurisdiction. The Hague, T. M. C. Asser Press, 2006, p. 183 - 210.