COMPREHENSIVE STUDY ON CYBERCRIME - United Nations ...

CHAPTER FOUR: CRIMINALIZATION
4.2 Analysis of specific offences
KEY RESULTS:
While wide consensus exists regarding broad areas of criminalization, detailed analysis of the
provisions in source legislation reveals divergent approaches that are apparent both at national
and, in some cases, international level
The detail of cybercrime offences matters. Differences in the elements of offences can create
challenges to the equivalence of offences in different countries for the purposes of
international cooperation. Small changes in offence elements, such as extension to ‘nonintentional’
states of mind can risk over-criminalization
Offences involving illegal access to computer systems and data differ with respect to the object
of the offence (data, system, or information) and regarding the criminalization of ‘mere’ access
or the requirement for the circumvention of security measures or further intent, such as to
cause loss or damage
Criminalization of illegal interception differs by virtue of whether the offence is restricted to
non-public data transmissions or not, and concerning whether the crime is restricted to
interception ‘by technical means’
Differences exist between countries as to the acts constituting computer system or data
interference. Most countries require interference to be intentional, but some include reckless
interference
Not all countries criminalize computer misuse tools. For those that do, differences arise
regarding whether the offence covers use of software tools and/or computer access codes.
Differences also exist concerning whether laws require that the tool itself was designed for the
commission of an offence, and/or whether the perpetrator intended to use it for an offence
National laws on child pornography use a range of terminologies but only in around one-third
of countries do they include simulated material. The majority of countries define child
pornography with reference to the age of 18 years but some countries use lower age limits.
Around two-thirds of countries include criminalization of possession of child pornography
This section of the Chapter contains a detailed analysis of the provisions of selected
cybercrime offences in national laws with a view to identifying both divergences between countries
that may present a challenge to harmonization of cybercrime legislation, and common elements of
offences that could be considered good practice. The analysis is based on two sources: (i) country
responses to the Study questionnaire; and (ii) analysis of primary source legislation for a wider group
of almost 100 countries. 13 Throughout the section, the source used is indicated at each stage. 14 In
general, country questionnaire responses are used to assess the existence of an offence covering a
particular cybercrime act. For those countries that criminalize the act, primary source legislation
analysis is then used to examine the contents of the offence in national law, using the method of
13 Primary source legislation was analysed for 97 countries, including 56 that responded to the questionnaire. The regional distribution
is as follows: Africa (15), Americas (22), Asia (24), Europe (30), and Oceania (6). It was not possible to include 13 countries that
responded to the questionnaire in the primary source legislation analysis due to insufficient information on relevant legislation
provided in the questionnaire.
14 Source attributions are: (i) ‘Study cybercrime questionnaire’; and (ii) ‘UNODC legislation analysis’. It should be noted that analysis
of primary source legislation is unable to easily take account of legal interactions between specific provisions and other general
parts of criminal law, or of the effect of judicial decisions or other interpretative law that affects the reading of the original
legislative provision.
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