Error in Civil Liability for Digital Family Harms "A Comparative Analytical Study"

Abstract

This research examines the element of fault in civil liability for digital family harms arising from social-media platforms, in a comparative study between the Iraqi, Egyptian, and Emirati civil codes and Islamic jurisprudence (fiqh). It defines the concept and standard of digital fault, then divides it into passive fault—the failure to perform a duty of supervision or removal by the guardian, the platform, and the public authority—and active fault, consisting of the wrongful act of the user and third parties. The research concludes that the standard of fault is objective, based on the deviation from the conduct of an ordinary person in a digital environment; that Islamic fiqh founds liability on the notions of transgression and liability-to-compensate (daman) rather than on personal fault; and that a platform's failure to remove harmful content after becoming aware of it constitutes a passive fault entailing liability. The study adopts the comparative-analytical method. This study consists of an introduction, three sections, and a conclusion. The first section deals with the concept of fault in digital family harm and its standard. It is divided into two subsections: the first deals with its concept and standard in law, and the second deals with its concept and standard in Islamic jurisprudence. The second section deals with the negative fault represented by the failure to fulfill the duty of monitoring or removal by the guardian, the platform, and the public authority through three subsections. The first subsection addresses the negative fault of the guardian regarding digital family harm, while the second subsection is dedicated to the negative fault of the platform regarding digital family harm, and the third subsection is dedicated to the negative fault of the public authority regarding digital family harm. The third section deals with the topic of positive fault represented by the act of aggression committed by the user and others, and it is divided into two subsections: the first subsection is dedicated to the positive fault of the user regarding digital family harm, while the second subsection deals with the positive fault of others regarding digital family harm. The conclusion is dedicated to the most important findings and recommendations.