Nota: En otra oportunidad comenté el fallo de la Corte Suprema de Justicia de la Nación “Rodriguez c. Google“. Tuve que preparar un resumen en inglés y lo comparto. Pueden consultar una versión en PDF con las notas al pie aquí.
On October 28, 2014 Argentina’s Supreme Court of Justice issued a judgment on the question of whether search engines are liable for third-party violations.
That decision was one the first of its kind by a top court of Latin America a region where this matter has not been regulated adequately: only Brazil and Chile have recently regulated Internet Service Provider’s liability for third-party violations.
I. Background of the Case
María Belen Rodriguez sued Yahoo and Google in connection to search results that linked her name to a number of pornographic sites. She also sued because both search engines showed, as search results, thumbnails of her photographs: she claimed that this was a violation of Argentina’s privacy laws that require consent for the commercial use of a person’s image (Article 31 of Law 11.723). She requested the Courts to order both companies to omit search results with her name, to stop reproducing her image, to pay damages and to prevent future damages with the implementation of filters to omit similar search results.
There was no question of standing because both Google and Yahoo have presence in Argentina.
In Argentina civil cases are decided by a single judge that acts as the First Instance. Both parties then may appeal his decision which is then resolved by a panel of three judges that act as the Second Instance. In extraordinary cases, the parties may appeal to the Supreme Court that can freely decide which cases to intervene.
In this particular case, the First Instance Judge decided the case against Google and Yahoo, the Second Instance decided for the Search Engines in general, but the Judges found Google and Yahoo liable for the use of the thumbnails.
Both parties appealed the case to the Supreme Court of Justice, that took the case.
II. The decision
The plaintiff had argued that search engines engage in a risky activity that cause damages to third-party and thus are subject to strict liability (art. 1113 of Argentina’s Civil Code) If Search Engines are held to an strict liability standard they could be responsible for third-party violations even if not properly notified by the affected party or competent authority. In effect this would mean that Search Engines, and other ISPs, should be obliged to police its search results.
But the Supreme Court rejected this argument, thus confirming the Lower Court’s decision . The Supreme Court concluded that strict liability does not apply to Search Engines because they do not engage in a “risky activity” for third parties. On the contrary, the Court quotes the European Court of Justice:
“…the activity of search engines plays a decisive role in the overall dissemination of those data in that it renders the latter accessible to any internet user making a search on the basis of the data subject’s name, including to internet users who otherwise would not have found the web page on which those data are published” (Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, AEPDM; Mario Costeja González, May 13, 2014).
The Court also states that in most countries were ISPs liability is regulated, search engines are not forced to police its search results:
United States of America: ISPs are not liable for third-party content (USC 230). The Court failed to notice that in Copyright violations the DMCA created a “Notice and take down” system.
European Union: “Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity (Article 15, Directive 2000/31/EC).
Brazil: “Internet service providers shall not be liable for civil damages resulting from content generated by a third-party” (Article 18 Marco Civil de Internet). ISPs are only liable when they are notified by a judicial authority of the illegality of a third-party content.
Chile: Article 85 P of Chile’s Law 17.336 of intellectual Property is similar to the European Union Directive quoted above. ISPs are only liable when they are notified by a judicial authority of the illegality of a third-party content.
Spain: Article 17.1 of Law 34/2002 states that ISPs, in general, are only liable for third-party content when they are notified by a judicial authority of the illegality of a third-party content.
And while the Court acknowleged that Argentina lacks and specific regulation for ISP’s liability it concludes that the solution must be similar to that of the countries above, as the only possible way to safeguard the Freedom of Speech protection granted by Argentina’s Constitution (Article 14).
Since Search Engines do not have the obligation to police third-party results strict liability is out of the question. Therefore, the Court concludes, Search Engines are only liable if they have effective knowledge of a third-party violation and do not take the steps necessary to prevent further damage. And this is the key issue of the decision because the Court also concludes that, in general, effective knowledge is the notification by a judicial authority of the illegality of a third-party content.But there are exception where notice by the affected party is enough in cases that involve content which illegality is clear and beyond any possible doubt and causes“gross and manifest harm”. The Supreme Court provides the following examples:
Revelation of secret judicial investigations.
Unlawful publications that grossly violate individual privacy or cause deliberate harm to one’s reputation clearly unlawful publications that grossly violate individual privacy or cause deliberate harm to the reputation of the affected person.
The above finding was unanimous. But the Court split for two other questions
The first one, thumbnails. The plaintiff had argued that the use of thumbnails by the Search Engines constituted a violation of Argentina’s privacy laws that require consent for the commercial use of a person’s image (Article 31 of Law 11.723)13. The Second Instance had decided for the plaintiff but the majority reversed the Lower Court’s decision arguing that there was no difference between a regular search result and a thumbnail. The minority argued that Argentina’s law only allows the reproduction of a person’s image, without consent, in a few cases none of which apply to thumbnails.
The second question concerned the plaintiff’s demand that the search engines adopt a filtering system to prevent similar future search results. The majority ruled against this petition because a filtering system could constitute Prior Restraint that is prohibited by Argentina’s Constitution and by the American Convention on Human Rights (Article 13). The minority argued that a filtering system may be workable where illegal content can be easily identified.
III. Importance of the decision
The decision is one of the first of its kind by a top court of Latin America, as such it will be a precedent for similar rulings in other Latin American Countries.
But this is only a decision in a particular case and thus it is difficult to extract a general rule from it. For example, does it apply to Copyright violations? Let’s take an example a site that serves as a platform to distribute copyrighted movies. One could argue, after this precedent, that the platform could only be held liable once notified by the competent judicial authority and is not required to implement some sort of filtering system. But one could also argue that this example involves content which illegality is beyond doubt and that causes “gross and manifest harm”. So the jury, the judge, is still out.
It is also troubling that while the Court concludes that, in general, ISPs are only liable after they receive a notification by a competent judicial authority the exceptions are somewhat broad and open to interpretation. Some of the examples provided by the Supreme Court as exceptions to the judicial notice concern speech that is protected by our laws and by Argentina’s Supreme Court precedents.