Title: CONCEPTS

Concepts

In Germany, no explicit codification of identity-related crime exists which actually refers to the term ‘identity’ in the statute. Generally speaking, criminal law is laid down in the German Strafgesetzbuch, the Penal Code. In addition, criminal offences can be regulated in specific areas of the law, like environmental law, copyright law, or data protection law.

In public discourse, the term ‘Identitätsdiebstahl’ (‘identity theft’) is sometimes used. In addition, the term ‘Identitätsmissbrauch’ (identity misuse) is used. The focus of the public and academic discussions on identity-related crime in Germany rests with phishing as a means of unlawfully taking over a chosen identity and on fraud enabled by misuse of credit card information. Furthermore, there has been debate on cases of eBay account misuse and account takeover. Again, these forms of crime are not always discussed in the context of ‘identity-related’ crime but with regard to the applicable provisions of the German Penal Code.

Even though the terms Identitätsdiebstahl and Identitätsmissbrauch are used regularly in the media, only few definitions are available in German studies. The few available distinct definitions of identity theft (Identitätsdiebstahl) in German sources are given by the Arbeitsgruppe Identitätsschutz im Internet (ai3) and Gercke. Another, non-academic, source is Wikipedia. None of these sources, however, discuss different forms of identity-related crime and result in a categorisation comparable to the level of detail of the FIDIS typology.

Ai3 defines ‘identity theft’ as follows: an offender makes use of another person’s identifying data, in order to take over that person’s identity. In the FIDIS categorisation, this definition concerns the subcategory of ‘identity takeover’. Wikipedia defines identity theft as misuse of a natural person’s personal data by a third party, and further states that identity theft usually aims at obtaining financial benefit or discrediting another person.  

Identity misuse (Identitätsmissbrauch) is defined by Borges and Schwenk as an offender causing false attribution of an action to a natural person.

Judgments explicitly mentioning the term identity theft are scarce and occur only in civil lawsuits. In criminal law cases, the various forms of identity-related crime are addressed in several Penal Code provisions without discussing the action with regard to identity-related crime. Hence, discussion of identity-related crime mainly takes place in relation to the codified statutory offence which covers the action in question.