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State
Civil Responsibility for damages coming from the transmission of data on the
Courts Sites
Mario Antonio Lobato de Paiva
Abstract: 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.
I. Introduction
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 forthe 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.
V. Conclusion
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.