4

If I, knowingly, break a site's terms of use (in a way like copying its material, when it explicitly states it's forbidden) as part of my job (I have written proof that my boss assigned me this task, he being fully aware of the liabilities), am I liable in any way? How would that change if I wasn't aware of the possible damages? I'm interested in both US or Brazil-specific answers.

2

In general:

You cannot be authorised by anyone to break the law!

It is worth noting that people who break "normal" laws in the course of their duties (e.g. soldiers, law enforcement operatives, espionage agents etc.) are in fact following the law because there are laws that allow them to break laws that apply to other people.

If you were "authorised" by your employer to break the law, both you and your employer (and the person(s) who authorised you) would be subject to prosecution or civil action. If you were not authorised then you and your employer would be subject to prosecution or civil action unless the employer could demonstrate that you were "on a frolic of your own" (i.e. they did not and would not have requested you to do it, it was against policy and they did not know) in which case its just you that are in trouble.

If I, knowingly, break a site's terms of use as part of my job, am I liable in any way?

You are liable in every way. So is your employer and the person who signed the note.

How would that change if I wasn't aware of the possible damages?

Not at all.

I'm interested in both US or Brazil-specific answers.

Brazil I am not familiar with but I would expect this to be the same pretty much universally. The US and other common-law jurisdictions is as stated above.

2

United States

Generally, the respondeat superior doctrine make the employer liable in the event that they order you to break the law1.

The Restatement (Second) of Agency determines the limits of whether conduct falls within the scope of employment where:

  1. the conduct of [the employee] is within the scope of employment, but only if:

    a. it is of the kind [the employee] is employed to perform;
    b. it occurs substantially within the authorized time and space limits;
    c. it is actuated, at least in part, by a purpose to serve the master, and;
    d. if force is intentionally used by the [employee] against another, the use of force is not [unforeseeable to the master]

  2. Conduct of an [employee] is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

There are limits to this doctrine:

  • Bates v. United States 701 F.2d 737 (8th Cir. 1983)2

    [t]he court found that the employer was not liable for the actions of a military policeman who pulled over a car of four teenagers. The officer shot and killed all four of the teenagers after he raped two of them. The court found that an employer could not be held liable for acts of an employee that were so excessively violent, without reason or responsibility and completely outside the reasonable scope of the employee's duties.

  • Heindel v. Bowery Savings Bank 525 N.Y.S.2d 428 (App. Div. 1988)3

    Acts that are purely motivated by personal interests or that are outrageous in nature are to be considered outside the scope of employment.
    A security guard at a shopping mall forced a 15-year-old into the mall's security office, where he assaulted and raped her.

So...

If I, knowingly, break a site's terms of use as part of my job, am I liable in any way?

Yes. You are still liable, however you can seek indemnity from your employer if it was carried out in the course of your duties.

How would that change if I wasn't aware of the possible damages?

The same would apply.

Brazil

Unfortunately, I'm not familiar enough with Brazilian principles. However, civil law jurisdictions tend to provide for some kind of vicarious liability. Brazilian law apparently derives from Portuguese, French, Italian, and German law. I only know for a fact that French law provides for vicarious liability in employer-employee relationship.

Having said that, a brief search for vicarious liability in Brazil shows at least one article4 states that:

although there is no doctrine of vicarious liability in Brazil, the provisions on joint strict liability might be used to the same effect

I'm not going to try to give as definitive of an answer for Brazilian law.


1. Davis EM. The doctrines of respondeat superior: an application to employers' liability for the computer or Internet crimes committed by their employees. Albany Law Journal of Science & Technology. 2002;12:683.
2. ibid. p. 692
3. ibid. p. 690
4. http://cyberlaw.stanford.edu/page/wilmap-brazil

  • Would respondeat superior cover criminal liability? If not, you can still be liable in sone ways. – cpast Oct 12 '15 at 16:56
  • 1
    Respondeat superior makes the master liable for the acts of the servant, it does not absolve the servant of responsibility, both are liable. – Dale M Oct 12 '15 at 21:34
  • @cpast respondeat superior can be applied to criminal liability subject to the mentioned limits. – jimsug Oct 12 '15 at 21:36
1

Brazil

Although both answers from @jumsug and @Dale M are complete and extent, I'd like to add a few insights in regard of the specific question.

(in a way like copying its material, when it explicitly states it's forbidden)

The question specifies the subject of copyright infringements and brazillian laws do not categorize that as a crime. USUALLY (note that I said with big letters), a crime is committed by a person, not a company. A crime is non-transferable and judged in the criminal courts. Since you're not committing a crime, it's not up to the criminal justice to try you in a court of law. But if you were, it's most likely for you to be held accountable for your actions, as well as your supervisor. Maybe you can get lighter sentence, but to be ordered to commit a crime is not an excuse to commit a crime.

That said, copyright infringements are a matter of civil court and this type of judicial process is more likely to hold your supervisor accountable than you.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.