Can NFTs Be Stolen?

The recent exponential popularity of NFTs has given way to the emergence of new criminal activity –using phishing scams, hackers are attempting to appropriate NFTs from wealthy collectors. Although steps have been taken towards the regulation of NFTs, no legal system or worldwide institution has yet ruled on the possibility of using criminal law to prosecute such behaviour. Accordingly, this paper analyses the applicability of property-based criminal offences on NFTs, more specifically, the applicability of the criminal offence of theft, in order to ascertain whether NFTs are protected by criminal law at all. A comparative research approach is chosen in order to compare the English and the Spanish legal systems with the aim of not only determining the scope and applicability of the criminal offence of theft on the appropriation of NFTs in both systems, but also intending to reach a conclusion regarding which legal system offers a better protection for NFTs. Results suggest that both systems would provide adequate and suitable protection for NFTs as objects of criminal law as long as they were recognised as “property” within the legal system. Taking into account that, nowadays, only England has recognised NFTs as such, it is concluded that, in comparison with Spain, English law currently provides a better protection for NFTs.