On October 27, 2014 the Argentinean Federal Supreme Court of Justice issued its much awaited decision on the case involving the Argentinian model and actress María Belén Rodriguez vs Google Inc. (file number 99.613/06). The case tackles the issue of the civil liability of web search engines derived from the content listed on their databases. In an important victory for Internet service providers (ISPs), the Supreme Court ruled that Google and and other ISPs are not liable for the content of third parties if the ISP does not have knowledge of the allegedly infringing material or, having such knowledge, acts expeditiously to remove access to such material. The Court balanced the competing interests of the freedom of expression and personal honor and reputation.
Unlike the US, Europe and even Chile, Argentina has not enacted any regulation on the liability resulting from different activities on Internet. Many well-known local individuals and celebrities, as well as others having less social recognition but whose names and images were used without their authorization on offensive website, have brought civil lawsuits in Argentina and obtained preliminary injunctions against search engines and other web intermediaries, even though ISPs do not have control over the creation of the offending content but merely index and provide access to it. Plaintiffs have usually based their petitions on the alleged violations of their constitutional rights such as those protecting privacy, dignity, image and honor and the like. Moreover, plaintiffs have typically requested the application of the strict objective civil liability rule set forth in article 1113 of the Argentinean Civil Code (enacted in 1869, reviewed in 1968 and to be replaced by a new Code promulgated in early October 2014, which will enter in force on January 1, 2016).
Defendant search engines, on the other hand, have argued that controlling and monitoring the content created by unrelated third parties is against the constitutional right of freedom of expression and technically impossible without also affecting legitimate content so pointing out that any takedown measure should be preceded by its particular identification, which should be done by the aggravated party. In this way, search engines take the position that only in particular cases should they act to remove offensive content; ISPs reject the application not only of the strict liability rule but also the general application of the subjective-fault liability rule set forth in article 1109 of the Civil Code.
Since the issuance of the first decision on the merits tackling these issues and particularly whether it was appropriate and feasible for the search engines to filter the listed results, which was issued in 2009 (see Virginia da Cunha c/ Yahoo de Argentina y Otro ordering Google and Yahoo to take technical measures to remove offensive content related to a local model), multiple cases were filed and decided by Argentinean judges and Tribunals with different results and reasoning, although most were decided in favor of the plaintiffs. The broad differences among those local judicial decisions and the similar discrepancies seen among local scholars made it clear that a decision from the highest Court was indeed needed to provide with some legal certainty.
The route of the case up to the Argentinean Supreme Court:
The lawsuit was filed by an Argentinean model named Mrs. María Belén Rodríguez, who requested the judge to apply article 1113 of the Civil Code and order Google Argentina and Yahoo to (1) remove and permanently block all search results associating her name to websites having sexual, pornographic content and the like; (2) remove all thumbnails using her image from the search results; and (3) compensate her for the monetary and moral harms suffered. The judge of first instance ruled for the plaintiff and granted her monetary damages in the amount of Arg$ 100,000 on Google, and Arg$20,000 on Yahoo.
This decision was appealed. The tribunal of second instance overturned the decision partially, as it found that both companies were not liable given that the plaintiff had not requested the takedown of the offensive content prior to the beginning of the litigation. The tribunal overturned the generic blocking order issued by the judge and held that any takedown should be restricted to the particular offensive content identified by the plaintiff. Yet, the court held Google liable for its use of the images of the plaintiff in the thumbnails without her authorization, which was considered as infringing article 31 of the Law on Intellectual Property No. 11,723 and therefore resulted in the obligation to pay monetary damages to the plaintiff.
Both parties filed the final local instruments available to appeal legal decisions, which are called extraordinary recourse (recurso extraordinario). Different third parties filed amicus briefs too.
Public oral hearings at the Supreme Court and its ruling
The Argentinean Supreme Court scheduled public oral hearings with the parties, their lawyers and also general public, which had only informative nature. Two hearings where conducted on May 21 and 26 of this year. The five Justices took some time to analyze the legal arguments discussed therein until, finally, they issued their decision on October 26, 2014 ruling for the defendant with two of the Justices concurring in partial dissent.
The majority began their concurrent opinion by stating that the case involved the need to align two contradicting sets of constitutional rights; on one hand, rights of freedom to expression and to information and, on the other hand, the rights to personal honor and image.
In order to clarify the inclusion of web communications with the right to freedom of expression and information, the Supreme Court made reference to article 1 of the Federal Law No. 26.032 and transcribed some parts of two reports issued by different international human rights institutions supporting the inclusion of web communications within existing International Treaties on Human Rights including article 13 of the Inter-American Convention on Human Rights. One of the reports was issued on June 29, 2012 by the UN Council on Human Rights and is called "Promotion, Protection and Enjoyment of Human Rights on Internet." The other one was issued on December 31, 2013 by the Office of the Special Rapporteur for Freedom of Expression Inter-American Commission on Human Rights and is called “Freedom of Expression and the Internet.”
The Court briefly commented on the importance freedom of expression including its incommensurable value for democracy, as well as on the individual right to honor and also to personal image that is included with the right to privacy set forth in Article 19 of the Federal Constitution.
The Court rejected the petition of the plaintiff to apply the strict objective liability rule of article 1113 to the search engines. In order to support their conclusion, the Court made reference to the fact that while some countries have enacted specific legislation, others have used existing regimes on civil liability but in both cases the result is that search engines do not have the duty to monitor the web content created by others and therefore are not responsible for it. Among the first group of countries were cited the cases of the Directive 2000/31 EC in the European Union; the law No. 17.336, as amended by law No. 20.345 from May 2010 in Chile; the law No. 12.965 from April 2014 in Brazil; the law No. 34 from 2002 in Spain and the Communications Decency Act of the US. Other sources mentioned by the Court to support its holding were (1) the report for the United Nations authored by Frank La Rue and titled “Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression” from May 2010; and (2) a Common Declaration on Freedom of expression and Internet issued on June 1, 2011 by the United Nations, the European Organization for Security and Cooperation, the Organization of America States and the African Commission on Human Rights.
However, the Justices stated that there could be cases when search engines would be held liable such as when they know about the illegality of the content but do not act in a diligent way, which requires the application of the subjective-fault liability rule set forth in article 1109 of the Civil Code.
Only with the aim of clarifying for future eventual cases, the Justices addressed the issue of the required mechanism to properly inform search engines and trigger their eventual liability. Absent any specific regulation it was necessary to distinguish between (i) the flagrant cases where the harm is clear and evident from (ii) those where the situation is less clear and/or require further investigation, which is the approach used by Portugal in article 16 of Decree-law No. 7 from 2004. The former group of cases includes child pornography. Information facilitating or promoting crimes and the like so anyone who is injured or affected by them can inform the search engines. The latter group includes those affecting the honor or similar personal areas that require further investigation with the participation of administrative or judicial authorities.
Regarding the liability of Google for the use of "thumbnails," the Justices treated them in the same way as to text and therefore reversed the lower decision in relation to the infringement of article 31 of the Intellectual Property Law No. 11,723 but left open the possibility of finding infringement if an ISP is properly notified but does not act diligently.
In relation to the rejection in the second instance to the part of the ruling of first instance ordering Google to monitor specific illegal content ex ante and filter such content from its indexes, the Court concluded that those activities would be against article 13 paragraph 2 of the Inter-American Convention on Human Rights, which bans the censorship on thinking or expression and establishes that any harm resulting from activities protected by those rights should be treated after their occurrence according to rules on liability protecting the rights and honor of third parties. On this particular issue the Court brought in constitutional jurisprudence from the US on freedom of the press and concluded that only in exceptional cases certain measures equivalent to censorship of the press would be accepted such as those to protect a minor who was involved in a judicial family case where his recognition was under judicial discussion.
Overall, the Court rejected all the petitions of the plaintiff and has brought some legal certainty on such complex legal areas involving ISP liability.
Analysis of Mariano Municoy, Argentinian lawyer