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April 15, 2015 Vol. 70 No. 8 Back to Bulletin Main Page

ARGENTINA: Supreme Court Decides ISP Liability Case and Applies Standard of Fault

The Argentine Supreme Court put an end to years of legal battles in the country by deciding that courts should apply a standard of fault when deciding Internet service provider (ISP) liability cases in connection with third-party-generated content (Docket No. R. 522. XLIX. REX).

The much anticipated decision was rendered by the Supreme Court on October 28, 2014, in Rodríguez, María Belén v. Google Inc. (file number 99.613/06) and sets out a concrete standard for search engine liability cases.
A model, Ms. Rodríguez, sued Google Inc. and Yahoo de Argentina SRL requesting that defendants delete all content arising from search results associated with her name, including thumbnails representing her image, of a sexual, pornographic, erotic or similar nature. The complaint sought to recover ARS 300,000 (USD 34,007) in moral and actual damages, plus interest.

The Court of First Instance admitted the complaint. The defendants were ordered to pay damages in a total amount of ARS 120,000 (USD 13,603) for fault-based liability. In addition to that, both defendants were ordered to remove all thumbnails and search results of an offensive nature or association.

On appeal, Division A of the Court of Appeals rejected the complaint against Yahoo and admitted it against Google. The appellate court followed the Court of First Instance’s reasoning regarding the application of the fault-based liability standard, but partially reversed the decision by releasing the defendants from all liability for search results directing users to third-party websites. In so deciding, the court considered that the defendants were not negligent, as it was not proven that they omitted to block the content after having actual knowledge of the situation. However, the court held that Google was liable for the use of Ms. Rodriguez’s image in the form of thumbnails, which it considered unlawful, and ordered Google to pay damages in the amount of ARS 50,000 (USD 5,667).

Ms. Rodriguez and Google filed an extraordinary appeal before the Supreme Court. With five justices in the majority and two concurring in partial dissenting opinions, it was held that search engine liability must be based upon a standard of fault and that no proactive monitoring obligations are to be expected from them. Their liability is only triggered when proven that they have actual knowledge of infringing third-party content and have not acted in order to correct the situation.

Therefore, because the Court of Appeals had ruled that neither Google nor Yahoo was negligent in reacting to the takedown order issued by the Court of First Instance, the Supreme Court rejected the plaintiff’s appeal and released the defendants from all liability.

A note in the decision also set up the requirements to determine whether or not a search engine had actual knowledge, distinguishing blatant cases from those that require further analysis. While the first will only require an extrajudicial notice, due to the obvious seriousness of the content such as “child pornography, […] incitement to violence, racism, genocide or any type of perverse discrimination […] photographs that clearly and evidently depict acts of an unmistakable private nature ...,” the second type of case will require that the warning be served through a court.

As for the use of thumbnails, the Supreme Court considered that such practice is no different from including links to third-party websites in search results. So it ruled that search engines are not liable under Section 31 of Intellectual Property Law No. 11,723, as they act as mere intermediaries, unless they fail to take corrective measures after being properly served with formal notice of the infringement.

The Supreme Court followed the above criteria when it ruled in subsequent cases on December 30, 2014, in Da Cunha, Virginia v. Yahoo SRL and Lorenzo, Bárbara v. Google Inc.

The Rodriguez decision clarifies that a liability standard of fault, rather than strict liability, applies to search engine activity, representing a major step towards legal certainty in the field.

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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