State Civil Responsibility for damages coming from the transmission of data on the Courts Sites.
State Civil Responsibility for damages coming from the transmission of data on the Courts Sites.
Mário Antônio Lobato de Paiva
Assessor of the World Organization of Law and Information Technology.
Member of the Ibero-American Federation of the Associations of Law and Information Technology.
Member of the Association of Law and Information Technology from Chile
Member of the Brazilian Institute of Politics and Information Technology Law
Member of the Brazilian Institute of Electronic Rights
Summary: I- Introduction; II- Latin American Turning Point; III- Concrete Damages; IV- State Civil Responsibility; V- Conclusion.
Modern and virtual world have shown a real revolution in habits in the real world as technological apparatus invade all sections of our society.
Because the judicial community is inside this context, it had no choice but get adapted to the new technologies duly warned of being labeled as inert and what is worse, inefficient.
However, this “no way back” should be tracked with greatest care so that it does not transform that so called benefit, facility or utility brought by technology into serious harm to the citizen who needs the good called Justice.
Therefore, before any implementation at institutional level (the Brazilian Bar Association, the Federal Prosecutor’s Office, the Law Courts etc.) of systems of information, principally those which can be assessed by the general public, specialists in the Information Technology and judicial fields should be called in order to elaborate legal opinion as well as studies which perceive the least aggression possible to the constitutionally protected rights.
Then, it comes the necessity of congresses, seminars and meetings which can gather law professionals to discuss issues related to the so called Electronic Law, enabling this way, the step forward towards the study of the subject finding adequate solutions to problems which come from the cybernetic community.
In the specific case of the State, the worry relies greatly on the sense of preventing its agents not to provoke due to their electronic acts, lesions to the citizens rights duly warned that the State itself civilly accounts for damages from, for example, indiscriminate transmission of procedural data at official sites.
II- Latin-American Turning Point
We have recently participated in the seminar “Internet y Sistema Judicial em America Latina y el Caribe.” (homepage: http://www.iijusticia.edu.ar/Seminario_Taller/) realized by the Instituto de Investigación para la Justicia Argentina, The Supreme Court of Costa Rica and the International Development Research Centre of Canada, where the benefits and difficulties coming from the home pages of the Judicial Branches in the web, the transparency and personal data protection programs were analised by specialists and ministers of Supreme Justice Courts from several countries from Latin America.
The event was considered a Latin-American turning point in the study of the diffusion of judicial information in the Internet. Priceless orientations were exposed and they should be observed by all leaders of Courts which dispose to the population institutional and procedural information, such as the participation of the civil society in the transparency programs, regulamentation of the data protection and the societies of credit information, access to judicial information, protection of data about the heath of those involved in judicial lawsuits, among other themes not less important, which are found in their complete texts at the site: (http://www.iijusticia.edu.ar/Seminario_Taller/programa.htm).
Such orientations were called “Heredia Rules” and are found available at the site: (http://www.iijusticia.edu.ar/Seminario_Taller/Lobato.tf).
In synthesis, we exposed that unfortunately the facilities which come from advances in the information technology have not been properly attended by the Law dealers who insist on, first, taking advantages of the benefits and just then on discussing the judicial issues which involve their acts.
We warn to the free search available at the sites of the Brazilian Courts. This device brings several negative implications when it comes to the privacy and intimacy of the people who may have their data openly exposed by the simple access to a homepage.
In the case of the Labor Courts, the damage is even worse to the worker, because they risk the conquest of a new job, because when they make such information available in an irrestricted way, the Courts provide bad employers with an information data about the workers who had or still have any kind of legal action against their employer or ex-employer, reason for which it may work as a hindrance to get a new job from the part of the workers.
The referred discrimination have already existed before this information data through “black lists” which moved around companies; however, without such facility and power of inhibition. Like this, any employer who would like to know whether the employee has already filed a suit with any complaints to the Labor Courts, may only have to access the homepage of the court to state and at the same time, prevent the access of the employee to the personnel of the company.
Such discrimination would occur every day and in the beginning there was no way to have it completely terminated; however, some precautions should be taken in order to avoid this attitude. The first measure to be taken (our advice at that time) is that the access remains restrict to the lawyers (freely because we have a function of essenciality to justice according to the article 133 of the Federal Constitution) and to the parties which are involved in the lawsuit, preventing this way, a general and indiscriminate search and therefore, making it difficult to have this abusive practice from the part of the employer. Practice, that would hardly be proved if it were raised in face of the Justice.
Our recommendation would certainly be decisively to make difficult this abusive practice from the part of the evil-minded employers, giving greater possibilities to the worker to get his so desired job. Our proposition was reflected on the Resolution of the President of the Labor Regional Court of the 24th Region, which prohibited the consultation through free search using the name of the parties.
Discriminations which prevent the free access of the employee based on dispatched certificates by the credit bureau or because the employee had already filed a suit with labor claims against his or her last employer are abusive and unconstitutional practices which should be opposed to by society. The Brazilian Bar Association/PA through the Commission of the Studies of the Law of the Information Technology presented a project addressed to the courts aiming at the limiting of the free access in judicial sites just to the lawyers, restricting this way, the other parties involved the access using only the procedural number.
With these measures, we want to assure the constitutional right of working freedom stated in the article 5th section XIII- “any kind of job exercise, office or profession is free provided that the professional qualifications which the law establish are attended.”
We also emphasize that all the fundamental rights have applications in the labor relation, emerging right in front of us a new field of study, that is “the workers protection related to the automatized treatment of personal data.”
Therefore, in order not to be threatened by either the extinction or damage of the fundamental rights, we must clearly stand to the facts from the concrete case, establishing general guidelines which do not benefit just one of the parties. That is why we are in favor of the interpretations and decisions based upon the “rights equilibrium” which grant the preservation of the right of publicity of the decisions and judicial lawsuits, as well as the protection to the worker’s privacy and intimacy.
We demonstrated that the Brazilian authorities have been taken measures which cohibits the discriminatory practice occasioned by the procedural information transmission via Internet. The Judicial Branch, itself, through the elimination of the search using the name of the worker in lawsuits in the pipeline or filed. The Legislative Branch with a project, which even foresees the detention of the employers who discriminated the free access to the job. The Executive Branch through the administrative rule mentioned above. Measures which aims at the preservation of the workers’ rights to job access assuring the respect to the constitutional and infra-constitutional legislation which have been violated by the advance of technology.
It is worth mentioning that such measures were just implemented after the effective sacrifice of several workers who suffered the humiliation of having the access to a new job vetoed simply because they have exercised the constitutional rights of petition to the public organs, a fact recognized by the Labor Courts, including the Supreme Labor Court on 08/30/2002, which according to an ample report in the Consulex Judicial Magazine canceled the search using the name of the claimant; remaining just the search using the name of the company or the procedural number.
The referred damaging situation, despite being partly solved, does not eliminate the rights of those who were prevented from getting a new job, of pleading in the judiciary civil compensation from the State, in which such unhappy episode serves as a kind of red warn to the other State and Federal Supreme Courts, since the denial to a job is not the only hypothesis which may really generate damages to the citizens according to what can be observed in the following topic.
It is necessary to bear in mind that we have been going through a cybernetic revolution which reaches the labor relations and, therefore, the conflicts which come from such transformation should be studied and cured, supplying the social actors of judicial and legal skeleton apt to deal with such types of relations, to aim at creating a social equilibrium between the publicity principle which rules the activity of the judicial organs with the right of the worker of free access to the job, without having discrimination coming from the diffusion of information from the Judicial Branch.
III- Concrete Damages
Throughout the debates, we could notice that in several cases which occurred in Latin American courts, there were effective damages with the indiscriminate transmission of the citizen personal data who may have his or her privacy and intimacy openly exposed by any individual who have access to the computer world web.
In Brazil it would not be different, because as mentioned above, several workers had their rights of free access to a job vetoed by the employer because of the availability of the search using the name of the claimant at courts sites. Such procedure brought recognized and concrete damages to millions of workers so that it was even admitted by the own courts that some years later decided to abolish this kind of search.
The Common Courts of Justice continue bringing damages to those who seeks for the Justice when they transmit data of judicial lawsuits which invade the intimate sphere of the individual, as for example, his or her health state or sicknesses which make the person suffer discriminatory situations such as AIDS.
So, we consider that this kind of violation of the right of intimacy and privacy of the one who seeks the State Justice to solve his or her worries generates the right to plead a respective and proportional compensation to the damage caused by means of the theory of the administrative risk which civilly accounts for the State to compensate the neglected for the damages caused due to its conduct.
IV- State Civil Responsibility
Nowadays, the theory adopted by the vast majority of indoctrinators is that the State responsibility is of objective nature comprehending omissive or commissive acts which are independent of the evidence of guilt. The Federal Constitution of 1998 leaves no doubt about its responsibility when it enacts that:
“Art. 37 § 6th – judicial people of public right and those of private right service lenders may answer for damages that their agents, in this quality, cause to third parties, assuring the right of return against the responsible one in case of fraud or negligence ”.
In its 5th article, it foresees the compensation for moral damage, which may be fixed according to the judge prudent discretion:
“ Art 5 X – the intimacy, private life, honor and a person’s image are inviolable, assuring the right of compensation by the material or moral damage decurrent from its violation”.
José Cretella1, when mentioned the question of the state civil responsibility understood that : “ a) the State responsibility for judicial acts is of the species of the gender of State responsibility for acts decurrent from the public service; b) the functions of the State are public functions exercises by the three Branches; c) the magistrate is a State organ; when it acts, it acts not in its name, but in the State’s name of which is representative; d) the judicial public service may cause damages to the parties which go to court to plead rights, either proposing or contesting actions (civil); or in the quality of defendant (crime); e) the judgement, either in the crime, or in the civil, may conjugate themselves in the judiciary mistake; motivated by the human fallibility over the decision; f) by means of the rescissory and revisionist institutes it is possible to attack the judiciary mistake, in accordance with the ways and manners that the law states them, however, if the mistake has already caused damages, it is responsibility of the State to compensate for; g) either voluntary or involuntary, the mistake of damaging consequences pleads for compensation, in which the States accounts for the damages caused, if the mistake was caused by personal fault of the judicative organ, even though the States accounts for it, exercising as follows the right of return over the one who caused the damage, for fraud or negligence; h) once the damage and the causal nexus between this and the judicative organ is proved, the State patrimonially accounts for the damage caused, fundamenting the responsibility of the Public Branch either in the administrative accident that excludes the judger but engages the State in technical flaws of the judiciary apparatus, or in the integral risk, what also engages the State according to the sympathizing principle of the onus and public charges.”
Basically, to the characterization of the responsibility, it may exist the causal nexus, in another words, the relation between the damage caused to be compensated and the agent conduct. The neglecting conduct in the case of the Labor Courts is the availability of the name of the claimant at the site by means of the procedural electronic search device and the damage is the vetoing to the job access decurrent from that availability of data.
In the Common Courts there are many examples of cases which bring damage to the citizen because of the procedural search using the name of the litigants which goes from credit concern up to shameful situations which expose the litigants as in the case of the litigant who has caught serious sickness which have vented or discussed throughout the lawsuit.
Furthermore, in the above mentioned cases, we may observe a clear violation of the intimacy and privacy of those who seek for Justice, who have, in many situations, their lives invaded in a minute time by any person who have access to the site of the Court violating the rights assured in the Federal Constitution, under the title “Of the Rights and Fundamental Guarantees, article 5th.”
Therefore it is completely viable the legal action of compensation for moral damages against the State which through the official sites of the Courts indiscriminately publish judicial information through the Internet which come to damage the citizen constitutionally assured rights, such as the right of intimacy and free access to a job.
The new universe of utility and facility made opportune by the insertion of technological systems to the administrators of the Judicial Branch have generated important advances which are going to culminate in the satisfaction of many who look for a solution to their worries in this institution.
Nevertheless, this evolution may not simply be implemented without having had studies about the impact caused over the rights of all the population. Therefore, the same way a shop needs a detailed study of the sales market, the judiciary needs first, studies which can make the implementation of new technologies viable, without having losses to the citizen constitutionally assured the fundamental rights.
However, as it is done in a precarious way, and like this causing all kinds of damage to the rights such as, for example, the free access to a job, credit restrictions, exposure of the serious health state of the parties etc. For the neglected party, it is left to look for the doors of the Judicial Branch in order to plead civil compensation from the State for material and moral damages caused by the indiscriminate diffusion of information from the parties at the official sites of the Courts.
Summing up, it is our responsibility to warn once again that the information technology is a powerful device of accomplishment of rights which enables great celerity to the jurisditional parcel, however presents vices which must be eliminated by the law professionals, if possible, before its application duly warned of transforming a benefit into a so big problem that it would have been better if it had not happen.
We hope the judiciary takes the appropriate measures in the sense of preserving the fundamental rights to privacy and intimacy through programs of data protection of those who look for it as a preventive measure duly warned of being shot by a torrent of legal actions of compensations coming from the diffusion of judicial discriminatory information.
1 JÚNIOR, José Cretella. Responsabilidade de Estado por atos Judiciais, RF, 230:46.