Current Affairs

Germany amending Criminal Code to fix liability for operating online trading platforms

An act amending the Criminal Code of Germany

Criminal liability for operating criminal trading platforms on the Internet

Des Bundesministeriums der Justiz und für Verbraucherschutz

Entwurf eines … Gesetzes zur Änderung des Strafgesetzbuches – Strafbarkeit des Betreibens krimineller Handelsplattformen im Internet


DATE: NOVEMBER 27, 2020

The Internet has made the exchange of goods and services easier in many ways. Trading platforms are accessible around the clock from almost anywhere in the world. They offer convenient and attractive options for customers, dealers and operators. However, there are not only platforms with legitimate offers, but also platforms on which prohibited items and services are traded. Such criminal platforms in the form of forums or marketplaces play an increasingly central role in certain areas of crime. The offerings on these criminal platforms include narcotics, weapons, counterfeit money, fake IDs, stolen credit card details and much more. Forbidden pornography, such as child pornography, is often traded on specially created platforms. Law enforcement agencies must be able to deal with this phenomenon consistently and effectively.

The criminal law recording of such facts can harbor legal problems in individual cases. The current criminal law is in principle suitable for adequately recording cases of the sale of incriminated goods and services. On the one hand, there are special legal prohibitions for the sale of certain goods ( e.g. in the Weapons Act or the Narcotics Act). On the other hand, the provision on aiding and abetting applies to persons who provide assistance to another person with their intentionally committed illegal act ( Section 27 of the Criminal Code – StGB). In those cases in which a sales platform is operated fully automatically, however, not every situation can be recorded in this way. This applies in particular if the platform operator does not have to take note of which specific goods are traded on the platform due to the full automation, even though it is geared towards the trade of incriminated goods. In these cases, the rules on aid may not be sufficient, since they require knowledge of the main offense, at least in its essential characteristics. In this respect, the previous criminal law structure of perpetration and participation is not always suitable for adequately capturing these forms of crime in the area of ​​the Internet. It is therefore necessary to supplement the criminal law regulations.

Solution

The draft sees the introduction of a new offense and commercial inspection. The regulation provides for a higher penalty. Besides effective possibilities for the investigation of crimes. For this purpose, the commercial inspection should be included in criminal offense catalogs( of telecommunications surveillance and online searches).