Article 2.4.10 Immunities and Defences

(a) Defences to Tort Liability:

The following common law defences may apply to tort claims brought under this ICT Code:

(i) Consent: Where the claimant voluntarily consented to the risk or conduct giving rise to harm;

(ii) Assumption of Risk: Where the claimant knowingly accepted a risk that was inherent, foreseeable, and voluntarily undertaken;

(iii) Necessity: Where the act or omission was reasonably believed to be necessary to prevent imminent and substantial harm, and was proportionate to the threat;

(iv) Lawful Authority: Where the conduct was authorised under this ICT Code, a decision of the ICT Court, or a binding administrative or enforcement action carried out in good faith;

(v) Self-defence or Defence of Property: Where the defendant acted to protect themselves, others, property, or digital systems against unlawful interference or imminent harm, using force that was objectively necessary and proportionate in the circumstances. This includes cyber defence or digital measures reasonably deployed to prevent unauthorised intrusion or sabotage. Shopkeeper’s privilege shall consitute defence of property.

(b) Operator and Institutional Immunity:

(i) The Operator and its authorised agents, institutions, or personnel shall not be liable in tort for acts or omissions carried out:

(ii) In good faith;

(iii) In furtherance of their lawful powers or responsibilities under this ICT Code; and

(iv) In accordance with applicable procedural safeguards recognised under this ICT Code or by the ICT Court.

(v) Such immunity shall not apply where the conduct was:

(vi) Grossly negligent;

(vii) Materially and manifestly outside the scope of lawful authority; or

(viii) In breach of fundamental rights or procedural guarantees under this ICT Code.

(ix) The Operator shall not be liable for harm arising from policy-making, legislative drafting, infrastructure development, administrative enforcement, or other governance activities, unless such harm was caused by conduct that was manifestly unreasonable or without lawful basis.

(x) The existence of immunity shall not preclude the ICT Court from issuing declaratory relief, recommendations for compliance reform, or procedural guidance.

(xi) Good faith shall be presumed unless rebutted by clear and convincing evidence. Reasonableness shall be assessed in light of the mandate and urgency of the relevant conduct. Immunity may be disapplied where conduct is proven to have been undertaken in bad faith or with wilful disregard for protected rights.

(xii) Institutional immunity does not prevent the establishment of non-binding mediation, ombuds proceedings, or other advisory forms of redress, which may be recognised or encouraged by the ICT Court.

(c) Burden of Proof and Contributory Fault:

(i) The burden of proof for any defence raised under this Article rests with the party asserting the defence, on the balance of probabilities.

(ii) Where a defence applies only in part or where the claimant contributed to the harm suffered, the ICT Court may reduce the award of damages in accordance with the principles of contributory fault under this ICT Code.

(iii) The ICT Court shall consider the comparative blameworthiness, causal connection, and fairness in allocating liability.

(d) Challenge to Immunity:

(i) A claimant may apply to the ICT Court for a preliminary determination on the applicability of Operator immunity asserted under this Article.

(ii) The ICT Court may:

(iii) Confirm the applicability of immunity;

(iv) Limit the scope of immunity where sub-paragraph (b)(ii) applies; or

(v) Direct procedural safeguards or compensatory alternatives where full immunity would result in manifest injustice.

(e) Digital and Cyber Context:

(i) For harms involving digital systems or cyber incidents, defences such as consent, necessity, and self-defence may apply to proportionate and targeted actions taken to protect infrastructure or data integrity.

(ii) Operator immunity shall extend to system-wide cybersecurity or operational responses carried out in the ICT public interest, provided such actions comply with this ICT Code and the principles of proportionality and minimal impairment.

(f) Institutional Oversight and Procedural Fairness:

(i) The ICT Court may review Operator actions falling under this Article to determine whether adequate procedural safeguards were followed.

(ii) The ICT Court may issue declaratory findings, procedural recommendations, or refer matters to an internal review mechanism or ombudsman institution, where appropriate.

(g) Relationship with Other Articles:

This Article applies to all tort claims under this ICT Code, including negligence, nuisance, emotional distress, defamation, and economic torts, unless expressly excluded. It shall be interpreted consistently with other provisions of this ICT Code and with principles of fairness, proportionality, accountability, and legal certainty.