Criminal Law and the Risks Posed by Internet. An Examination of Spanish Criminal Law

Abstract

The vertiginous advance of technology has seen the advent of new forms of crime such as hacking, phishing, child grooming, cracking and denial of service, and also the use of computer networks to commit traditional offences such as fraud, harassment, defamation, intimidation, industrial espionage, and child pornography. It is fair to say that today’s society has become a society of risk. Cyberspace has become a haven for criminality and a platform for organised crime. The specific characteristics of information and communication technologies (ICTs) require a new response from the field of criminal law in order to tackle cybercrime. Thus, it is necessary in some situations to advance the punitive barrier (to use the Spanish expression), that is, to bring forward the moment when the conduct is considered an offence; in others, to reformulate certain criminal concepts in order to adapt to the new scenario; and in still others, to create new criminal offences (though related to existing ones) since the new types of criminal activity do not conform to the definitions traditionally used in criminal law. Furthermore, the cross-border nature of these activities means that an efficient response of the system requires the reinforcement of international cooperation mechanisms; the harmonisation of criminal provisions; and the enhancement of effective procedural instruments, even though this may imply a certain renunciation of sovereignty on the part of the States concerned. This is the main purpose of the creation of supranational regulations, represented above all by the Council of Europe Convention on cybercrime (Budapest, 23.11.2001) and Directive 2013/40/EU of the European Parliament and of the Council on attacks against information systems.