Judicial Assistant / Ali Ibrahim Tawfiq
The Iraqi legislator, by referring to the articles of the Penal Code, we find that he dealt with the contribution and even called it the name (the perpetrator) in articles (47 to 54 penalties). The same applies to the case of electronic crime, which is considered a fertile ground for the perpetrators. Indeed, the crime itself does not occur in most cases except through participation in its commission. After careful examination, we find that criminal jurisprudence did not agree on a unified name for electronic crime.
As some call it electronic crime, and there are those who call it information crime, as it can be said that electronic crimes are (all criminal acts resulting from the use of informatics and modern technology represented by computers and automated data processing or transfer of data on people or funds). We find that the two pillars of crime require the presence of More than one person in committing it, especially in the forms of electronic crimes (piracy, threatening, publishing, extortion, theft, fraud, shopping) and others, as in the crime of electronic piracy, since the perpetrator in this case needs to purchase some electronic permission in order to create a fake account and access the account of the victim, and since Cybercrime is a self-contained crime, as is the case with other crimes. It has two pillars, material and moral, so a contributor to the crime, especially in the material aspect, gets punished in the light of his criminal participation in the crime. The forms of participation in the crime are multiple.
If we notice in it a lot of electronic complexities and the source of broadcasting the crime, starting from the company that developed the available application programs and anti-programs, all the way to the perpetrators who commit it, because there must be one unit (causal relationship) in the material pillar between the contributors to the material components of the electronic crime so that it leads Contributing in the end to the occurrence of a criminal consequence is punishable by law due to the behavior of the contributors to the criminal activity. As for the moral pillar, this is the important part of cybercrime.
Before talking about the moral element of the crime, it must be said that there is a difference between legal jurists in the moral components (software). on a tangible physical entity, by means of photography, or by transferring it onto a support or other physical means. This opinion is based on the fact that the legislative texts related to the exact subject of application are tangible physical objects. As for the second trend, it believes that the electronically processed data are nothing but electronic vibrations, or electromagnetic waves, that accept recording, preservation and storage on physical media, and that they can be transmitted, broadcast, received and reproduced. It cannot be denied, and by referring to the Code of Criminal Procedure and through the provisions of Articles (79, 78, 75, 74 of fundamentals) related to inspection in the Iraqi Code of Criminal Procedure, we find that the legislator has mentioned the word (things) in more than one place in this article. This means that it is possible to control (the logical data of the computer) by converting it into physical outputs through the digital programmer, and whoever contributes to the crime at any stage of its stages is punished up to its implementation through the availability of the elements of the crime. The moral element means (the establishment of a mental relationship between one combine contributors to the crime)
And since cybercrime is complex, especially in the moral aspect, we find that it is not necessary for there to be a mental bond between the contributors, but rather that the crime occurs at any moment, as is the case in publishing crimes. This is the case in hacking pages and republishing dishonorable photos, publications, and clips on the victim’s page, and it happened that someone noticed this post and re-published it, and the result of the publication was the possibility of killing, so is there a link between the hacker and the publisher? The answer is categorically negative.
So, it is not required that there be an agreement, cooperation, or joining prior to committing it, but rather the goal is that there is insistence on the part of the contributors on the occurrence of the criminal result, as is the case in websites specialized in trafficking in human organs or re-promoting drugs, but the reader may be tempted to ask a question: Is The company that developed the social media programs could be a contributor to the crime, and it is possible to say that the company in this case can be held legally accountable, as it is assumed that it has knowledge through the mental link between the perpetrators, as it cannot be said that the company has no knowledge in this case through electronic protocols Installed on applications, means of communication, for example, and through these protocols that provide the electronic server (servers) with all the stored data that is exchanged or published in order to commit it. Without these protocols, the crime cannot occur, and this conclusion applies to all forms of electronic crimes
This conclusion is very important, which allows the aggrieved party or the victim to sue that company, and even has the right to claim compensation, especially in theft and financial transfers that lead to hacking of bank websites and other financial or intellectual thefts. Recently, we note that some companies have taken proactive measures (by setting Electronic coding with electronic intelligence notification or electronic blocker) in order to preserve its reputation and avoid legal issue.