Civil Liability in The Era of New Technology: The Influence of Blockchain

Abstract

Blockchain regulation is still in its embryonic stage and the European Union is called upon to face this complex regulatory challenge. Although scholarly opinions vary, it must be acknowledged that the growth of blockchain could, at least within the framework of European private law, lead to the discarding of principles and rules traditionally considered as providing the default order. The increasing global investment in blockchain technology will demand the creation of a new private law, one in which principles and rules thus far considered recessionary could emerge and, in the near future, play a primary role.

The present work aims to evaluate the impact of blockchain on private law’s civil liability sector, attempting to describe its future path and envisage future regulation. The need to identify the person responsible for either malfunction in the chains or illegal activities perpetrated against them, thereby causing economic damage to end users, clashes with the highly decentralised nature of this technology. On the basis of an activity risk analysis carried out on blockchain platforms, the paper argues that the strict liability of the relevant operators will increasingly become the reference paradigm for civil liability, definitively supplanting the fault-based rule. Meanwhile, the need to consider the introduction of a mandatory insurance scheme for blockchain platform operators is emphasised, with a view to not only protecting the assets of operators but also ensuring full compensation for end users in the event a malfunction or attack results in the loss of assets held on the decentralised network.

The renewal described will perhaps involve a new basic philosophy that will oblige the European Union to face the challenge of a regulation that will be increasingly intertwined with economic evaluations.

Note: Paper awarded by European Law Institute (ELI) - 2019 Young Lawyers Award

Keywords: blockchain, law, civil liability, strict liability, technology, insurance, compensation