The Cyber Crimes Law does not provide a clear definition of these criminal acts, and the legislators have merely given a few examples and instances of computer-related criminal activities, and have then determined the appropriate punishments for them. Before going into each of the individual articles of this law, and subjecting them to legal analysis in a simple language, I believe it is necessary to provide a clear definition of some of the main concepts used in the said law.
The Data: The term “data” in effect refers to all the information which enter the computer in the form of either digits, numbers, letters or various forms of symbols and signs, and are subsequently processed by the computer. The information which is fed to the computer are in the form of either text, or voice (audio) or film (visual). Therefore, whenever the law talks about “data”, the legislators mean the kind of information which has entered the computer and has undergone processing there, and is then ready to become the computer’s “output” for dissemination. In order to determine cyber crimes, each of the relevant factors should be studied carefully so as to identify the constituent parts of the defined crimes. It is in this way that one can ascertain if a crime defined by the Cyber Crimes Law has actually taken place.
It should be noted that all offences and crimes should have three essential constituent elements. In other words, a specific action or deed can be considered as an offence or crime only if it contains all the three essential elements for the occurrence of a crime, and if even just one of these is absent, then it is not possible to label an action as a crime for certain. This situation is similar to living organisms, who need brain, heart and lungs, and without any of these, their life cannot be sustained.
Question: Which are the three constituent elements of a crime?
Answer: These three constituent elements are: The legal element; the material element [or the element of conduct; actus reus]; and the mental (or the judicious) element of crime [mens rea]. A crime is like a living organism whose existence is conditional upon the concurrent presence of all three legal, material and mental elements.
The “legal element” of a crime is about the specific article of the law which considers a given act as an offence, and prescribes a specific punishment for it. For instance, Article 588 of the Islamic Penal Law – which declares the acts of giving and receiving bribes as crimes and envisages certain punishments for them – is the legal element for the crime of bribery.
The material element of a crime is the actual physical conduct whose perpetration constitutes a crime in the eye of the law, and because of this, people know that the act should not perpetrated. In other words, if someone carries out an act which the law has defined as a crime, then it is said that the material element of the crime has been fulfilled. In the legal terminology, this processes is described as an actual and material “positive action” – that is to say, any kind of action or deed which is physically perpetrated [as against crimes which result from failure to do something – for example, pay tax]
For example, the law states that if someone puts his hand in another person’s pocket and removes its content without permission, he has committed theft which can be punished. The fundamental essence of this action, that is putting one’s hand inside another person’s pocket and taking out its content, without informing the owner or obtaining his permission, can be defined as the material element of the crime of theft.
Of course, for some crimes, the material element is the failure to do what is required. For instance, a husband is duty-bound to pay his divorced wife maintenance money, and if he fails to do so, he has committed the crime of failing to fulfil his financial commitments. In the legal terminology, it is said that the failure to perform an action constitutes the material element for that particular crime.
A person who commits an unlawful act is termed as the “perpetrator”.
Question: What is the mental or judicious element of a crime?
Answer: For a crime to actually take place in practice, the person who has perpetrated it must be aware that his conduct constitutes a crime for which the law has envisaged punishments. When a person carries out an action with the full knowledge that his conduct is unlawful and bears penalties and sanctions for him, it is said that the crime has occurred with intent, and the perpetrator has had malice. The mental element of a crime therefore refers to the presence of intent and purpose by the perpetrator of an unlawful action. In effect, it is the malice and ill intention of the perpetrator which forms the mental or judicious element of crime.
There are two categories of criminal malice and ill-intention:
General Malice: In any crime, general malice denotes an awareness of the unlawfulness of a conduct, and carrying it out, regardless, with full intent and purpose. In other words, the mere fact that a person has perpetrated an act while being aware of its criminality means that he has acted with criminal intent, and as such, that particular crime has in practice taken place.
Specific Malice: In some crimes, apart from the prerequisites of awareness of the unlawfulness of a specific conduct, and having a will and intent to carry it out, the perpetrator should also be seeking a result and outcome for himself too. The specific result or consequence that the criminal seeks and expects from his criminal action is referred to as “specific malice”.
For instance, with regards to the unlawful action of gaining unauthorized entry into another person’s home, the mere fact the perpetrator is aware that he does not have the right to enter that home, but still goes ahead and does it by intent and on purpose, allows one to conclude for certain that the crime of illegal trespassing has occurred. In this particular crime, the perpetrator has not achieved any other result. However, in the case of embezzlement, the embezzler is seeking to win over some assets and wealth from the person whom he embezzles. In the law too, the crime of embezzlement occurs at the point that the perpetrator of the crime achieves the said result, and here, his mere awareness of the criminal nature of his action, together with his intent to deceive another person so as to take away his assets are not enough to enable one to conclude that the crime of embezzlement has actually occurred. Instead, additionally, the presence of a specific malice and ill-intention – that is say taking away the victim’s assets – is also necessary for the crime of embezzlement to occur in the eyes of the law. Therefore, in some crimes, to satisfy the mental element of the crime in question, all that is required is the awareness of the criminality of the action, and the perpetrator’s intent and purpose, while in other crimes, in addition to the factors of awareness and intent, there is also a need for the perpetrator to be pursuing a specific ill-intention and malice.
