The Facebook murder case: a crime online?

Many who have followed the news since mid August have heard of the Facebook murder case. A teenager had stabbed his ex girlfriend, who was also in her teens. The killer was allegedly incited to the act by his friends by way of messages on the social network platform Facebook, for example by informing him on the whereabouts of the girl and challenging him to attack her. This brought about the prosecution of the killer and of his friends for their respective involvement in the murder. The trial of the principal murderer, the boy who handled the knife, was concluded and sentence was handed down on September 3, 2012 by the Arnhem District Court (LJN: BX6328). He was sentenced to the maximum detention and treatment period for juveniles. The trial of the accessories was adjourned for further examination until later this fall.

The killing of this unfortunate teenage girl was broadcasted as the Facebook murder. That poses the question what the meaning of Facebook was for the moral or legal appreciation of the acts of incitement. I use this publicity to broaden the picture a little and have a look at the current legal status of crimes in cyber times. ICT technology is so omnipresent in our society, that we may find ourselves at a point where we have to introduce much more special legislation for crimes in which ICT plays a role, may be even for incitement using ICT.

The first criminal legislation in the Netherlands on cyber crimes in the early nineties reflected the outcome of a debate on how many new crimes, if any, were necessary to keep track with ICT developments at that time. With some degree of simplification one can say that the first computer crimes were designed to aim only at those new illicit actions that could not be covered by classical descriptions in the criminal code. At the bottom line one tried to avoid a digital duplication of classical crimes. For example, no new ICT form of the crimes of distribution of illegal material was introduced. Distributing child pornography, criminal insults or material inciting to hatred or discrimination remained the same crime in the code, irrespective of the use of ICT. As much as possible the criminal law should remain the same for crime ‘online' as it was for crime ‘offline'; such was the basic principle.

This basic principle was under pressure since it was pronounced. The first cause was the other principled decision by the legislator. Under the criminal law ‘data' could not be categorized as 'goods'. As a consequence, 'offline' crimes related to illegal appropriation of goods could not be used to deal with similar actions 'online'. Theft or extortion of data was legally excluded and handling illegally obtained data could not be categorized as reset (handling stolen goods). For interferences with data or data processing systems new 'online' crimes had to be introduced. For the rest the flexible interpretation of elements in the classical crimes could provide for the necessary adaptation to new circumstances. Nevertheless, online could not be the same as offline.

One of the other causes for pressure on the choices in the early legislation came from the constant and rapid changes in technology and the use of it. The popular parallel virtual worlds and digital forums, for gaming or meeting, are not automatically covered by the criminal law. That raises a host of new questions. When you act against the rules and steal someone's results in a digital game, will that amount to theft or embezzlement? When your digital personality commits an assault on another digital person in the digital world, would that be criminal, in case of that action being against the rules and customs in that world? When you impersonate as someone else on a social network platform, would that be covered by the law on deceit? Does the virtual world need more coverage by special criminal law because the classical crimes no longer apply?

The rapid growth of internet use is a final issue to consider. Can we go on saying that distribution of hate speech or slander via the web is still basically the same crime as it was in the past, now that an audience of potentially millions is one mouse click away? Can we uphold the assumption that identity theft is just a form of deceit, even when the damage is instantly spread worldwide?

It is time to rebalance the impact of that type of behavior on the integrity and security of what we hold dear in our society. In the meantime, not all crimes in which ICT has played a part are to be categorized as online crimes. The incitements to the Facebook murder on the social network platform are not an example of online crime for which we would wish special legislation. As little as incitement by letter is a postal crime, so little is the need to ICT-ize all incitements where ICT was instrumental. However, it is time for a rebalancing operation. How much online crimes can be covered by legislation drafted for offline situations? The outcome will not be the same as it was, that's for sure. On top of that, it will be very hard to arrive at a balance that will be immune to the next technology change. And the next, and the next ….

To the judgment in the Facebook case (Dutch):
http://zoeken.rechtspraak.nl/default.aspx, type 'BX6328 LJN' in the box, click on 'Zoek'

On identity theft:
http://www.security.nl/tag/identiteitsdiefstal  (Dutch)
http://www.idtheftcenter.org (English, USA)

by Evert Stamhuis, Dean and full professor criminal law and procedure OU Netherlands