Lessons Learned from a Seemingly Insignificant Legal Case

A Critique of the Information System Fraud

Abstract

Introduction: The significance of the frauds committed using the information system in the Hungarian criminal law has gradually increased in parallel with the progress of digitalization. However, it is not clear whether it is justified to maintain criminalization at the criminal level in cases of low value and marginal danger to society, and whether this is in line with the ‘ultima ratio’ nature of criminal law.

Aims: The aim of the study is to examine whether the current regulation of fraud committed using the information system is proportionate in cases of low value and minor importance, or whether the introduction of the misdemeanor structure would be justified.

Methodology: The methodological basis of the research is the dogmatic and normative analysis of a specific legal case – which can be labeled as trivial by the public opinion. During the study, an overview of the substantive criminal law and misdemeanor law is followed by an analysis of the specific legal case. The study covers the comparison of thresholds, qualified cases and penalty items, and also takes into account the relevant provisions of the Budapest Convention on Cybercrime.

Results: The study emphasizes that in the examined legal case – where the damage caused was negligible – the act is classified as a severe crime solely due to the manner of commission, while acts committed in a ‘traditional’ manner for the same or higher value are assessed as a misdemeanor. It can be stated that the current regulation does not ensure differentiation based on the social danger of the committing behavior, the perpetrator’s level of consciousness and IT skills. It can also be noted that in the case under analysis, the procedural costs may disproportionately exceed the extent of the damage caused. It can also be shown that the spread of certain technical security systems (exit gates) in stores actually creates a situation in which, instead of ‘classic’ theft, influencing the operation of the information system becomes the only realistic form of offense. The study also raises the need for a revision of the Budapest Convention.

Conclusion: The primary lesson of the research is that the current, undifferentiated regulation of fraud committed using the information system may violate the ultima ratio nature of criminal law and the requirement of proportionality in cases of low value of the offense. Another important finding is that the technical nature of the method of commission does not in itself justify criminal-level sanctions if the danger to society is negligible. Future legislative and criminal policy research may be justified in considering the introduction of a threshold-based offense form and the revision of the Budapest Convention from a proportionality perspective.