INTRODUCTION

Crime is not new to the world. It is as old as the human society. Crime has
existed ever since humans have exited. With the passage of time the society has
changed and so has the nature of crime. With the emergence of new era of
technology, anew crime came to be known as ‘cybercrime’. The ancient texts
and mythological stories right from the pre-historic era spoken about the crime
that it is an act by an individual against an individual, but this thought changes
when it comes to cybercrime, because a cybercrime can also be against an
individual and can also be against an organisation. In this module we will be
discussing about the concept of cyberspace, meaning and concept of
cybercrime, the fundamental elements of cybercrime, international convention
related to cybercrime and differences between cybercrime and traditional crime.

Concept of Cyberspace

The term ‘cyber space’ was first coined by William Gibson. He later described
as “an evocative and essentially meaningless”. At present Cyberspace is used to
represent anything which is related to computer and internet. Thus, we can say
that cyberspace is a virtual space where all the communication and actins
related to information technology takes place. It can also be described as a
global electronic village which has no barriers. It is an electronic medium of
computer networks, where online communication can take place and individuals
can interact, share information, exchange ideas, direct actions, provide social
support, conduct business, play games, etc.

Webster Dictionary defines Cyberspace as, “Cyberspace is the electronic system

of interlinked networks of computers, bulletin boards, etc. that is thought of as
being a boundless environment providing access to information, interactive
communication, and, in science fiction, a form of virtual reality.”
Gibson defined Cyberspace as, “Cyberspace is the name of a real non-space
world, which is characterised by the ability for virtual presence of, and
interaction between, people through ‘icons, waypoints and artificial realities’.”

According to Chip Morningstar and F. Randall Farmer, “Cyberspace is defined

more by social interactions involved rather than its technical implementation.”

From the above definitions we can understand that cyberspace is a virtual

platform where people can communicate with one another, collect information,
etc. and it has no limitations.

Meaning and concept of Cybercrime

The use of term ‘Cyber’ became universal during 1980s but it originated several
decades earlier in 1948 when Nobert Wiener coined the term ‘Cybernetics’ and
described it as “the study of message as a means of controlling machinery and
society”. The term ‘Cybercrime’ is the combination of two words ‘Cyber’ and
‘Crime’. ‘Cyber’ denotes the virtual space and ‘Crime’ is an act against the
society which is an offence. So, we can say that ‘Cybercrime’ is an offence
which is committed in virtual world. These crimes are committed with the help
of computer, computer system or computer network. One of the main
characteristic of cybercrime is that it has no boundaries or it scope is not limited
to one country, it can be committed by anyone from any place and the victim
can be anyone at any place.

We will discuss about cybercrime in detail in the next module.

Fundamental elements of Cybercrime

To prove someone guilty of a crime the two elements are very important:

i. Actus reus: act or omission that comprise the physical of a crime

 ii. Mens rea: guilty state of mind

Actus reus in Cybercrime:

The actus reus of cybercrime is varied and dynamic. Actus reus in cybercrime is
challenging as it is committed in intangible surroundings. First of all it is hard to
trace any footmark of the perpetrator and even after if he leaves any footmark
then it is hard to prove in the court of law as it is required to be in physical
form, or at least in such form which is admissible in the court.

The act of occurrence of crime can be said when someone uses the computer,
computer system or computer network and gaining the access to that computer,
computer system or computer network without permission of the rightful owner.
Until and unless the absence of consent or permission is not proved, the actus
reus of the offender is not proved.

Mens rea in Cybercrime:

The mens rea in case of cybercrimes comprises of two essential elements:

1. There must be an intent to secure access to any programme or data stored

in any computer, computer system or computer network.
2. The person who is attacking must know at the time of attack that he is
committing the actus reus, that the access he is intending to secure is
unauthorised.

International Convention on Cybercrime

The Council of Europe’s Cybercrime Convention which is also known as

Budapest Convention on Cybercrime was opened for signature in 2001 and
came into force in 2004. It is the sole legally binding international multilateral
treaty on Cybercrime.
Key features:

i. This facilitates the detection, investigation and prosecution of crimes

that are committed through internet and other computer systems.
ii. It operates on three dimensions:
a. Criminalises certain conducts;
b. Provides some procedural tools for states to follow; and
c. Places an obligation on the state for mutual cooperation in assisting
with the investigation.
iii. It is further supplemented by an Additional Protocol which was
adopted in 2003. This made the use of computer networks to publish
xenophobic and racist propaganda, a punishable offence.

Offences which are criminalised:

 Illegal access (Article 2)

 Illegal interception (Article 3)
 Data interference (Article 4)
 System interference (Article 5)
 Misuse of devices (Article 6)
 Computer-related forgery (Article 7)
 Computer-related fraud (Article 8)
 Offences related to child pornography (Article 9)
 Offences related to infringements of copyright and related rights (Article
10)
 Attempt and aiding or abetting (Article 11)

Objectives of the convention:

 i. To pursue a common criminal policy which aims towards protection
of society against cybercrime;
ii. Build the capacity of nations to combat cybercrime;
iii. Function as a mutual information sharing channel so as to facilitate
better enforcement of law;
iv. The Preamble of the Convention put an emphasis on the importance of
maintaining a correct balance between the interest of enforcement of
law and respect for fundamental human rights, specifically the right to
carry opinions without interference, freedom of expression and
therefore the rights concerning the respect for privacy.

Why India is not a signatory?

 Because it had not participated in the drafting of the treaty;

 Because it concerns about sharing of data with foreign law enforcement
agencies as it infringes on national sovereignty; and
 Because the Mutual Legal Assistance regime of the convention is not
effective

And so India decided not to be a signatory of the treaty.

Differences between Cybercrime and Traditional crime

Basis of Traditional Crime Cybercrime

difference
Nature Traditional crimes occur in
Cybercrimes occur in virtual
actual world. world.
Geographical The offender and the victim
The offender and victims are
Proximity are geographically close.
not geographically close. An
attack can take place from
anywhere.
Offender-victim In most of the cases the It is not necessary that
relationship offender is familiar to the offender is familiar to the
victim. victim. The offender can

Anonymity It is hard for the offender to
hide his/her identity.
Detection and Traditional Crimes can be
risk easily detected and there is
high risk that the offender
shall be made vulnerable to
criminal action.
Knowledge The offender, don’t need any
particular knowledge of any
thing. The offender may be
or may not be trained.
In further modules we will read about the cybercrime and the legislative
frameworks.
choose his victim randomly.
It is very easy for the
offender to hide his/her
identity.
It is hard to detect a
cybercrime and risk is low for
the offender to be made
vulnerable to criminal action
as the identity is hidden.
The offender is trained.
He/she need to have a proper
knowledge of internet or
computer.