EU Criminal Law and the Regulation of Information and Communication Technology

Abstract

1 Introduction: Criminal law regulation in the context of information and communication technology It is well known that the opportunities afforded by the global information space give rise to the potential for the commission of new crimes-crimes such as hacking or denial of service attacks-and for existing crimes, such as speech offences or fraud, to be committed in new ways and with potentially larger consequences. The most interesting aspect of cybercrime regulation for criminal lawyers is the suggestion that individual countries cannot effectively unilaterally create and enforce criminal laws to regulate such matters. Perhaps the biggest challenge for the regulation of information and communication technology (ICT) is that the global information space does not respect national boundaries. There is clear potential for national legislation in the UK or Switzerland or Norway to be undermined by a less strict regulatory regime elsewhere. It seems likely that in order to be successful, any regulatory approach will call for some degree of cooperation between countries. This poses an obvious problem for those seeking to develop a regulatory structure. This challenge is particularly relevant in the criminal law context, as the criminal law has traditionally been considered to be the product and responsibility of national law. Even if we accept the need for some kind of overarching criminal law regulation, questions arise as regards the group or organisation which is best placed to develop these provisions and the means by which these are to derive their legitimacy. It is this tension between national sovereignty on one hand and the need for common cross border regulation on the other, which is so clearly evident in the context of cyber-criminality.