Last month, the INTA Bulletin reported
that a draft bill addressing Internet service provider (ISP) liability had been submitted to the Argentine Congress. If passed, the bill would consider ISP liability under the standard of fault instead of the standard of strict liability, meaning that ISPs would be held liable for infringing third-party content only if they have effective knowledge that such content is infringing and they fail to remove or block access to it.
In a recent decision, L., B. v. Google, Inc. – Damages
(Docket No. 82198/2009, July 2, 2013), Division I of the National Court of Appeals in Civil Matters reversed the first instance court’s ruling finding Google liable for third-party infringing content under the standard of strict liability.
Photographs of the plaintiff (an Argentine model) were posted in bad faith on several third-party pornographic websites. When executing a search on the GOOGLE search engine under the name of the plaintiff, Internet users retrieved these pornographic websites as search results. The plaintiff did not have any relationship to or association with these websites.
The plaintiff sued Google for moral and actual damages and requested that Google be ordered to remove all search results containing photographs and references to her name in connection with pornographic websites to which, erroneously and in bad faith, the plaintiff’s name and image were linked.
The first instance court, under the standard of strict liability, partially accepted the plaintiff’s claim. The court concluded that Google’s search engine service was an activity that posed a risk of infringing the plaintiff’s rights. It ordered Google to pay ARS 35.000 (approx. USD 6,144) in damages and to remove from the search results any links to pornographic websites including the plaintiff's name and image. Both parties appealed.
The Court of Appeals reversed the lower court’s decision and rejected the claim. It is worth noting that even though all three justices of Division I agreed on the merits, they delivered separate opinions, which highlights the importance of the subject matter under analysis.
First, the Court of Appeals concluded that Google’s services could not be characterized as posing a risk. Rejecting the application of the standard of strict liability, the court held that the operators of the pornographic websites were the ones infringing the plaintiff’s rights and were in turn responsible. The court added that these website operators were third parties for whose activities Google could not be held liable.
In particular, Justice Castro made it clear that search engines do not generate the content shown in the search results, but merely indicate by means of a link where the users can find such content. Therefore, search engines are not technically capable of altering on their own the content of the websites.
Second, in connection with the removal of the links from the search results, the court found that although search engines have in place tools that allow them to filter content, the burden of identifying infringing content and notifying the defendant should be placed on the plaintiff. It added that search engines should not have imposed on them a general obligation of monitoring.
More specifically, Justice Molteni stated that here the plaintiff had not proven that Google failed to remove or block the infringing content after having effective knowledge of it, and therefore, the plaintiff failed to prove Google’s negligence.
In summary, the Court of Appeals concluded that search engines are not liable for the content of the websites shown in their search results. At the same time, the court found that the activity of search engines does not pose a risk of infringement, and rejected the application of the standard of strict liability.
In the absence of specific legislation or a final decision from the Argentine Supreme Court on this issue, courts will continue to resort to general civil law damages principles to analyze ISP liability and apply either the standard of fault or the standard of strict liability. This lack of uniformity means continued uncertainty for ISPs.
Although every effort has been made to verify the accuracy of items in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest.
© 2013 International Trademark Association