If actions “executed” by a smart contract are illegal, who can be held accountable?
As regards the accountability for illegal actions it has no relevance whether random software or a smart contract is involved, the general legal principles apply. Accordingly, the person behind the smart contract, whose contribution directly or indirectly led to the illegal action, can basically be held accountable. This person may be e. g. the person who designed the smart contract, the software engineer who coded it, or under certain circumstances the provider of the blockchain platform if available. Alternatively, a person who is legally obliged (e.g. on a contractual basis) to avoid the given illegal act might be held accountable as well.
In order to consider someone accountable for an illegal smart contract, it is necessary to identify the parties involved. In this regard, Italy is still waiting for the Agency for Digital Italy to emanate the guidelines indicating the requirements for the identification of parties.
However, in some specific cases – i.e. when parties of a contract know each other – even without the AGID
guidelines, it is easy to recognize who is the one responsible for “executing” illegal actions.
There currently exists no legal system for going after the promoters of a malicious smart
contract. However, the authorities are likely to extrapolate the offenses from current legislation
on cybercrime, abuse of communications platforms and other criminal charges.
All parties involved in the execution of an illegal smart contract can be held
In such a situation, depending on the character and severity of illegal actions undertaken as a result of an “executed” smart contract, all persons involved in drafting, writing, negotiating, and executing this particular smart contract can be held accountable. In this respect, the general rules of criminal responsibility in Polish law will apply. Those allow for holding accountable not only the person who committed an illegal action but also those who ordered it, helped in its preparation, and facilitated it.