August 1, 2013
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ARGENTINA: Proposed Bill Would Set Standard for ISP Liability
Unlike the European Union and the United States, Argentina has no legislation addressing the liability of Internet Service Providers (ISPs) in connection with third-party-generated content.
Therefore, when analyzing cases involving ISP liability, courts have resorted to general civil law damages principles and have applied the standards either of fault (based on Sections 509 and 1109 of the Argentine Civil Code) or of strict liability (based on Section 1113). While no final decisions on the merits have yet been rendered, there are cases pending before the Argentine Supreme Court.
To address this problem, a draft bill addressing ISP liability was submitted to the Argentine Congress on March 27, 2013. It includes the following key provisions:
- ISPs are defined as technological intermediaries that allow access, connection or interconnection to the Internet, as well as the transmission, hosting, posting, direction and search of content and information, including but not limited to Internet access providers, cache service providers, hosting service providers and search engines.
- Content is defined as any information, file, data or message of any nature to which access is enabled through telematics networks.
- In general, ISPs will not be held liable for any content uploaded or generated by any third party unless the ISP has actual knowledge that such content is illegal under the laws of Argentina or that it infringes upon third parties’ rights and it fails to remove or block access to the content.
- Particularly in cases where ISPs serve merely as technical intermediaries or provide Internet access, they will not be held liable for any content as long as they do not create or alter the content and do not select the addressees.
- It is understood that ISPs will have actual knowledge once they are formally served with notice of a court decision ordering them to remove or block access to certain content.
- Search engines operating under the country code top-level domain (ccTLD) .ar (the ccTLD corresponding to Argentina) should include in their websites an email address through which consumers may submit their claims as an alternative to court actions.
- Nothing in the draft bill should be interpreted as limiting ISPs’ ability to implement self-regulatory systems providing alternative mechanisms for the notification, removal, suspension or blocking of any content suspicious of being infringing, as long as any such mechanism does not imply a lower level of protection than that of the draft bill.
- Any legitimate party has the right to institute court action before the judge of its domicile and request the court to issue a preliminary injunction ordering the ISP to remove or block any infringing content. The court may issue the requested injunction without first hearing from the accused party by ordering the applicant to provide a prima facie showing of his rights.
In summary, if this draft bill is passed, ISP responsibility will be considered under the standard of fault instead of strict liability. This means that ISPs will 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.
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.
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