Virtuality, (im)morality and harm: some normative questions about cybercrime

Abstract

The article tackles some normative issues surrounding the criminalisation of certain undesirable conduct in cyber space. Despite its proclaimed "virtual" nature, such conduct can become very "real" when the harm arising from it is taken into account. In line with the Harm Principle, the criminalisation of harmless - albeit unpleasant - conduct is, however, problematic in a modern, liberal criminal legal system. The article also addresses the question of the innate immorality (mala in se) of certain cybercrime and lack thereof, which may further impede legitimisation of criminalisation. Not only is criminal law always not one but several steps behind and a rather ineffective tool for dealing with such social phenomena, its legitimacy comes partly under question also when more and more crimes are perceived as "mere" mala prohibita, thus having no (negative) moral standing outside the law. It is further examined what happens when the majority is "deviant", when deviance becomes the norm or the rule. Apart from criminalisation-justification problems, it is argued that this situation enables the evolution of various neutralisation techniques, further promoted by the accessibility and (perceived) anonymity issues relating to the internet. It is observed, moreover, that technology facilitates a generational gap in IT knowledge, as well as in the value systems, and that the crux of the problem regarding the said crimes lies therein.