Civil responsibility for damage caused via distributed ledger technology

Abstract

Distributed Ledger Technology has generated a technology that is available for anyone in the world to use and develop without revealing their identities and without a centralised authority to control their behaviour. This questions whether the current tort and contract law regimes in Malta are capable of addressing the damage that various participants might incur via cryptocurrency blockchains. This paper explores that Maltese tort law provisions are adequate to provide redress to the injured party. The caveat is that the legal elements required by these provisions must be fulfilled by the plaintiff in respect to all the multiple alleged tortfeasors. This necessitates lawyers to explain the technicalities of DLT efficiently to show the judiciary why the elements of the law are fulfilled in terms of the behaviour of the parties. Contractual responsibility lies in whether a contractual relationship can be established. The current position is that not all the elements required by law for the validity of a contract are fulfilled. However, with the necessary legislative intervention one access point for redress can be established, parties may no longer remain anonymous, the causa behind the contract could be revealed and implied consent could be better proven. This may be contrary to the very characteristics of DLT ; however, it would ensure enforcement, and therefore, legal certainty. It is too early to determine which approach Maltese Courts will take to determine whether liability exists. Nevertheless, Maltese civil law is equipped to provide redress irrespective of the number of alleged tortfeasors. It all depends on the evidence brought forward and the extent to which lawyers will succeed to educate the judiciary regarding DLT.