Summary

Although, an increasing number of reports of criminal offences are being submitted in connection with identity theft, criminal procedure is still not commenced on the basis of many reports of criminal offence due to the reason that for the said reports of criminal offence the body conducting the proceedings has not established any necessary elements of a criminal offence relating to identity theft stipulated in §1572 of the Penal Code in the activities described in the notice of appeal. According to the bodies conducting the proceedings, the circumstances underlying reports of criminal offences related to identity theft are often rather insults or defamation subject to civil proceedings. The reason is that a typical case of identity theft is a situation where, by using the personal data of a data subject, a fake account is created containing humiliating or degrading information or an advertisement or post with humiliating content is created. Such an activity does not always comprise the necessary elements of a criminal offence of identity theft; however, if a person still feels insulted or defamed by the said activity, the only option for them to protect their rights could be to turn to civil court.

The above-said raises the question as to when does the establishment of a fake account or a post interfering with the rights of another person become a punishable identity theft. Accordingly, this article analyses, through the elements of unlawful activities, the clarity of the boundary existing in the valid legal system in Estonia between defamation or insult enabling only civil liability and identity theft as a crime.