Virtual acts, real crimes? A legal-philosophical analysis of virtual cybercrime

The advent of computer technology has given rise to a new type of crime: cybercrime, which can, in broad terms, be defined as crime that involves the use of computers or computer networks. Examples of cybercrime are hacking (in legal terms: illegal access) and e-fraud. The newest generation of cybercrime is virtual cybercrime. Virtual cybercrime involves a specific aspect of computers or computer networks, namely: virtuality, which can in essence be described as computer simulation. Consider, for example, the prohibition on virtual child pornography (article 9 Convention on Cybercrime). Virtual child pornography does not consist of photographs or film material of real children engaged in sexually explicit conduct, but of computer-simulated children; for the images are photo-shopped or even entirely computer-generated (Convention on Cybercrime, Expl. Report § 101). And in the Netherlands, for instance, several minors were convicted of theft for the stealing of virtual items in the virtual worlds of the online multiplayer computer games Habbo and RuneScape (Rechtbank Amsterdam, 2 April 2009, ECLI: NL: RBAMS: 2009: BH9789, BH9790, BH9791; Gerechtshof Leeuwarden, 10 November 2009, ECLI: NL: GHLEE: 2009: BK2773, BK2764). The latter case was ultimately decided by the highest court in the Netherlands (Hoge Raad, 31 January 2012, ECLI: NL: HR: 2012: BQ9251). A case that was never brought to court, but highly debated in the media and in (legal) academic literature is the “virtual rape” (rape of an avatar, i.e. a user’s virtual representation in a computer game) that was described by Julian Dibbell in the New York newspaper the Village Voice as early as 1993. The field of virtual cybercrime is largely unexplored. Only a handful of virtual cybercrimes have been brought under the scope of criminal law; they include the production, distribution and possession of virtual child pornography and theft of virtual items. In addition, there are a couple of putative virtual cybercrimes that have been discussed in the media or (legal) academic literature; they include the above-mentioned example of virtual rape. This dissertation explores the field of virtual cybercrime, mainly from a philosophical point of view, but other viewpoints (i.e. a legal-economic, a pragmatic and a constitutional viewpoint) are also briefly taken into account. It focuses is on the question when virtual cybercrime should be brought under the scope of criminal law.