TORT LIABILITY IN MAKING AND IMPLEMENTING PUBLIC MANAGEMENT DECISIONS USING DIGITAL INFORMATION SYSTEMS
Authors:   Kutafin Moscow State Law University (Moscow, Russian Federation), Zubarev Sergey M. , Travin Alexander V. ,   St. Petersburg State Marine Technical University (Saint Petersburg, Russian Federation), Frolov Aleksey I. ,   Saint Petersburg Law School at the National Academy of General Prosecutor’s Office (Saint Petersburg, Russian Federation)
Published: January 2021

The article provides a legal analysis of the conditions of civil liability for damage caused by the adoption and implementation of state management decisions taken during the operation of digital state information systems. An approach to assessing the guilt of the state in taking a harmful management decision in the context of digitalization, consisting in the analysis of the actions of the entire state appa-ratus as a whole, rather than a single individual body that failed, for example, to resist com-puter attacks, is proposed. The features of tort liability of the state for breach of confidentiality of digitally represented data and for harm caused by inaccurate (irrelevant) information of information systems have been considered. The principle of public reliability has been suggested as a general rule for state information systems. The opinion has been expressed that it is necessary to define unambiguously which information systems are characterized as publicly trustworthy. The paper touches on the problem of tort liability in case of breach of electronic identifi-cation and authentication rules. The author has argued that both the certification centres which violated the procedures of qualified electronic signature keys issue and public law entities when authorities and officials caused damage can be considered as a tortfeasor if there are reasons to do so. An analysis was made of judicial practice of appealing against actions and decisions of public authorities taken on the basis of applications signed with fictitious qualified electronic signatures. A special attention was paid to the tort liability associated with the activity of agents involved in the processes of adoption and implementation of state management decisions using information systems (MFC, certification centres etc.). Business entities contributing to the processes of information systems maintenance and engaged by the state bodies are suggested to be called "information systems agents". The peculiarities of civil responsibility of the state for damage caused by a management decision promoted by an information system agent were considered. It was suggested to con-sider the state as a proper subject of tort liability, the guilt of which in this case was specific and consisted in failure to take measures for control over the corresponding agent. The legal analysis of the grounds of vicarious liability of public-law entities for damage caused by information system agents was carried out. The opinion about independent liability of information system agent is argued if the harm is not in causal connection with actions (inactions) of public legal entity or if there is no guilt of public legal entity. On the basis of the practice of the European Court of Human Rights it is proposed de lege ferenda to fix the responsibility of the state for the torts committed by the persons entrusted by the state to perform public functions.