European Criminal Policy in Times of Digitalisation: Rule of Law Requirements for the Criminal Law Protection of Democracy and the State

• Applicant: Professor Dr. Frank Zimmermann
• Subject Area: Criminal Law
• Term: since 2023
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 519364913

Digitalisation not only makes life easier in many areas, but also poses serious threats to democracy and the rule of law. How acute this threat is has not only become evident since Russia's aggression against Ukraine and the West. The project will therefore examine how criminal law provisions protecting democracy and the state deal with the challenges of the digital age; furthermore it will analyse how criminal policy should respond to them. To that aim, the project will focus on three phenomena: First, the protection of democratic processes under criminal law, for example against "fake news" and with special regard to AI technologies such as "deep fakes". Secondly, the project deals with the criminal responsibility in digital networks, not only of users, but also of hosts and service providers. Thirdly, the project examines how cyber sabotage and digital attacks on critical infrastructure are dealt with under criminal law. From a German perspective, for example, the problem is that the relevant criminal offences are either very vague or not formulated in a way that encompasses new technologies. Since all EU member states face comparable challenges, which moreover affect genuine interests of the EU, the project will explore the EU legislator’s options to act and it will develop concrete proposals for European criminal policy. In doing so, particular attention will be paid to European fundamental rights as well as to preserving the principles indispensable for a criminal law based on the rule of law, especially the principle of legality and the ultima ratio principle.Apart from the applicant, 22 European criminal law scholars will be involved in the project, many of whom have been working together in the "European Criminal Policy Initiative" since 2008. This project group will first conduct an extensive legal comparison to determine how the criminal laws of EU member states deal with the phenomena mentioned above. At the same time, the European legislative framework (including instruments that are still under negotiation, such as the Digital Services Act and the European AI Regulation), will be taken into account. This analysis will serve to identify legislative shortcomings at the level of national and EU law. Subsequently, the project group will – with additional interdisciplinary expertise, for example from the field of computer science – develop proposals on how the Union legislator can react to these challenges within its competences and with full respect for constitutional principles. The proposals will include both selective amendments to individual legal acts (such as the AI Regulation) and a possible new directive for the harmonisation of member states’ criminal law. The results will be presented to the public and published at a final conference.

• DFG Programme: Research Grants