Ten days ago, news was published about the British Parliament discussing a legal amendment that would allow the imprisonment of officials from social media and technology companies if they fail to protect children from harmful content on the internet. This discussion came in response to growing demands to protect children after a child was killed by a criminal he met through a website connected to an online game.
The news passed quietly. Some people may have supported imprisoning the heads of internet companies out of sympathy for children, or perhaps out of resentment toward those companies. Others might argue about the effectiveness of such a law that imprisons company executives, either because of the practical difficulty of controlling these companies that operate across national jurisdictions, or because the issue is fundamentally subject to economic considerations.
I have not reviewed the draft law to understand its details. However, the approval of the principle of imprisonment—not merely compensation—in this type of case (which, to the best of my knowledge, is something new) implies assuming the criminal liability of company executives for crimes committed by others in cyberspace—the internet. In my view, this contradicts the principles of criminal justice and the principle of the personal nature of punishment, which means—among other things—that a person cannot be held responsible for a crime nor subjected to its punishment unless they are the perpetrator or a participant in it, whether through agreement or assistance.
In its legal meaning, a crime consists of violating a penal provision. Its occurrence requires either an act or an omission that results in this violation, which we refer to as the material act (actus reus). This violation must also be accompanied by the perpetrator’s knowledge and intent to commit the crime, which we call criminal intent (mens rea) or the mental element.
Under this concept, the entity normally considered capable of bearing criminal liability is the natural person, that is, the human being. Accordingly, criminal liability primarily applies to natural persons. However, there has been a growing trend toward recognizing the criminal liability of legal persons—such as companies—particularly through what has become known as the person responsible for the actual management of the legal entity.
This approach can be observed in several cases, such as the liability of the person undertaking the effective management of a company under the Capital Market Law No. 95 of 1992, or the liability of the editor-in-chief under the Press and Media Law, and previously under the Penal Code. It can also be seen in the liability of service providers and managers of websites and electronic accounts under the Cybercrime Law.
However, holding the person responsible for the actual management of a legal entity (the company) criminally liable remains subject to the established rules of criminal liability. These rules require that the person being held criminally responsible must personally have committed the crime, either as a participant through assistance or agreement, and must have had knowledge of it so that criminal intent is established.
Accordingly, the French Court of Cassation ruled in one of its decisions that criminal liability did not apply to an editor-in-chief for statements made during live broadcast programs, due to the absence of proof that the editor-in-chief—the person effectively responsible—had prior knowledge that the speaker on air would utter legally punishable statements.
These same principles were taken into account when the Supreme Constitutional Court of Egypt upheld the constitutionality of Article 68 of the Capital Market Law No. 95 of 1992. In its ruling, the Court stated that the legislator, in order to ensure that companies operating in the capital market comply with legislative regulations—thereby protecting the rights of their clients and positively impacting the functioning of the capital market—made the basis of liability for this crime the proven responsibility of the person exercising actual management of the company within the limits of the powers granted to them. That person is held responsible for their own actions, even if the crime was committed in the name of the company, for its benefit, and using one of its means, without the provision establishing liability for the acts of others.
