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Israel: Use of Virtual Means Does Not Lessen Criminal Responsibility, Punishment

(Feb. 12, 2014) On February 5, 2014, the Supreme Court of Israel unanimously rejected an appeal of a penalty imposed on two physically impaired Arab-Israeli brothers who were convicted of having used social networks to assist Hamas in the organization and recruitment of activists for terrorist attacks in Israel. In addition to their virtual coordination, one of the appellants had actually met terrorism activists in person in a planning meeting in <!–?Jerusalem. Israel’s Supreme Court rejected the argument that leniency should apply to adjudication of the appellants because they utilized mostly virtual rather than physical means in their dealings with Hamas. (CrimA 2791/13 Anonymous v. State of Israel [in Hebrew], STATE OF ISRAEL: THE COURT AUTHORITY (Feb. 5, 2014).)

According to Justice Daphne Barak Erez, considering the serious nature of the offenses of which the appellants were convicted, the means used by them had no impact on the penalty to which they should be subjected. She held:

It is necessary to note that the linkage between virtual behaviors to harm [experienced] in the real world is revealed repeatedly in many areas. It has been discussed numerous times in relation to the perpetration of other offenses in the virtual world, including from the aspect of punishment, as with regard to sex offenses. … It is certainly relevant to situations of other offenses such as fraud and gambling. … It is no wonder that even in the military context there has developed virtual fighting, which may have really serious implications for the lives of people.

Without setting any precedent, it is possible to think that the ease associated with the conveyance of messages through a variety of technological means, and the difficulty of identifying and following them, requires strict application [of the law] in those cases where details of the offense are revealed. (Id. ¶¶ 20-21.)

Based on the state’s agreement and having considered arguments relating to their medical condition, the Court agreed to void the fines initially imposed on the appellants. The Court confirmed, however, the penalties of six years and six-and-a-half years of imprisonment imposed on them by the lower court. (Id. ¶ 24.)