Vulnerable Users and Digitally Induced Deviance: Questions of Liability in Cybercrime

Authors: Cronin, A.

Start date: 5 April 2016

While cyberspace provides a novel environment for the commission of ‘traditional’ crime, an immersed presence in a particular cyber-context can also induce a unique psychoactive state in a user from which deviant behaviour is a possible consequence. This digitally-induced change in the user’s cyber-psychological status is comparable with that induced by other intoxicants and, where digital addiction ensues, it is characterised by excessive, obsessive, compulsive, impulsive and secretive behaviour. Although not necessarily manifesting in criminality, these traits are associated with a propensity to offend. Furthermore, beyond the passive facilitation of a medium in which digital addiction can develop, some software providers design motivational approaches with the intention of altering the user’s psychology and inducing a ‘flow’ state, characterised by impaired risk-awareness. Thus, while the existing criminal law has application to offending that takes place online, it lacks the sophistication to respond to the unique features of cyberspace. This raises questions of responsibility, for example, whether digitally-addicted online offenders can plead mitigation if they are unaware of the risk of the altered psychological state. Similarly, where an induced ‘flow’ state impairs awareness to such an extent that the user does not foresee the risk of his behaviour causing harm, whether he should escape liability altogether for want of criminal intent. Furthermore, given the exceptional relationship between provider, cyber-environment and user, whether there may be instances when criminal liability can be imposed on the provider on account of his passive or active influence. Given that cyberspace is unlike other platforms for crime and, of note, has the capacity to detect and react to online behaviour, the imposition of corporate criminal liability on the platform provider can be justified on the basis of a failure to disclose, or to prevent, online criminal activity from taking place.

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