The Criminalisation of Cybercrime: Connected Dots and Blind Spots in the Development of Legal Instruments

Photo by Markus Spiske on Unsplash

Building on her 15-year research on cybercrime, Dr. Audrey Guinchard, Senior Lecturer at the Essex Law School, gave a presentation on the criminalisation of cybercrime at the 2022 Society of Legal Scholars (SLS) Conference, held on 6-9 September at King’s College London.

In her paper, Dr. Guinchard explained that regulating crime is the traditional domain of nation states; cybercrime is no exception. The first legal instruments to tackle computer-focused crimes (e.g., unauthorised access or hacking) date back to the seventies and eighties. Yet, international institutions such as the OECD and the Council of Europe have quickly recognised the transborder nature of cybercrime, keen to push for the creation of a level-playing field and better cooperation among nation-states. In fact, we could even argue that international efforts of criminalisation are concomitant, if not anticipatory, of national legal instruments on cybercrime.

Dr. Guinchard pointed out that what is less known behind this push for harmonisation is the role of the computing community, a scientific community which has international dialogue at its heart and which has frequently engaged with legal professionals more than legal professionals have engaged with computer scientists. These key features of the criminalisation of cybercrime continue to shape modern legislation as the movement for reforming the UK Computer Misuse Act demonstrates.

Yet, Dr. Guinchard emphasised that blind spots remain: comparative law analyses can be superficial; the international outlook remained dominated by Western/European countries, ignoring the many voices of Asia, Africa and Latin America; the link between improving cybersecurity and decreasing cybercrime remains unappreciated; and criminalisation can carry hidden agendas which turn the fight against cybercrime into a battleground of values, as the recent push for the UN treaty on cybercrime illustrates.

So, if the transborder nature of cybercrime has long been a rallying cry for its worldwide criminalisation, the resulting legal frameworks continue to be subjected to various influences and forces, acknowledged and unacknowledged, leading to a paucity of information as to how effective the law is in tackling cybercrime. Dr. Guinchard argued that reflecting on those pathways to criminalisation may allow us to move away from these hypes and understatements which have marred the field since its inception.

A copy of Dr. Guinchard’s slides can be downloaded below. She can be contacted at this email address: abguin@essex.ac.uk.

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