As a Proposal for the Effort to Harmonize the Service Fault to Cyberspace: Digital Service Fault
This study proposes the adaptation of the current liability conditions to the unique characteristics of the digital environment, addressing the fault-based liability of the administration under Turkish Administrative Law. The theory of service fault, which is traditionally used to express the fault-...
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| Main Author: | |
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| Format: | Article |
| Language: | English |
| Published: |
Istanbul University Press
2024-12-01
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| Series: | İdare Hukuku ve İlimleri Dergisi |
| Subjects: | |
| Online Access: | https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/B8E45CA3DB4249189C3DF9D4BDB3C9C5 |
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| Summary: | This study proposes the adaptation of the current liability conditions to the unique characteristics of the digital environment, addressing the fault-based liability of the administration under Turkish Administrative Law. The theory of service fault, which is traditionally used to express the fault-based liability of the administration, has been unable to keep pace with the rapidly evolving and changing digital world. While doing so, the concept of “digital service fault” is used to avoid confusion with the existing theory of service fault and to emphasize the characteristics of the environment in which the activity occurs. In this context, the concept of digital service fault is proposed as a liability concept that can be used to compensate for the administration’s faulty actions arising from its public service and administrative law enforcement activities in the digital environment. The concept of digital service fault does not exist in Lex Lata. Therefore, this study aims to explain the necessity of differentiating the administration’s liability for damages caused by its faulty actions in the digital domain from service fault in certain respects and the need for this differentiation to be conceptualized separately from a Lex Ferenda perspective. The main rationale behind proposing this concept is the concern that applying the classical liability conditions as they currently stand to financial liability disputes arising from the administration’s activities in the digital environment would likely fail to yield fair results for the injured party. In this regard, the digital service fault is presented as a suggestion for updating the administration’s liability conditions by considering the specific characteristics of the digital environment. Digital service fault and service fault can be distinguished based on the element of administrative conduct, which constitutes the first condition of liability. Within this framework, the distinction between service fault and digital service fault will primarily be determined by whether the administrative conduct falls within the scope of the administration’s digital public service or its law enforcement activity in the digital environment. Therefore, an activity element in the digital realm can serve as a distinguishing characteristic between these two theories. However, if the dispute is evaluated within the scope of digital service fault—meaning it originates from an activity of the administration in the digital environment—a need arises for a different assessment that departs from the existing service fault theory in terms of the elements of damage, causation, and fault. Accordingly, this study aims to explain why such a need exists by analyzing the conditions of liability. The conclusion reached in this study, regardless of whether it is labelled digital service fault or another concept, is that to remedy damages arising from the administration’s faulty actions in the digital environment, there is a need to develop the existing concepts and conditions by considering the specific characteristics of this domain. |
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| ISSN: | 2687-2897 |