Argentine Supreme Court rules on search engine liability

The Supreme Court has ended years of discussion on search engine liability for third-party content by finding that a fault-based standard should be applied in all such cases

In the absence of specific legislation, Argentina is grappling with the complex issue of internet intermediary liability with regard to tort claims involving third-party generated content. In an important and much-anticipated ruling, the Supreme Court has decided for the first time on the standard for ascribing search engine liability.

Thus far, Argentine courts have relied on general civil law damage principles, applying either fault (based on Sections 509 and 1109 of the Civil Code) or strict liability (based on Section 1113) standards. Under a fault-based standard, the plaintiff must show that the search engine was duly notified of the infringing content and still failed to take adequate corrective steps. Conversely, a strict liability standard requires only a showing that the infringing content was made available by the search engine, regardless of prior notice or actual knowledge.

While the decision to apply one standard over the other usually hinges on subtle legal considerations, the practical implications for search engines are substantial. Most notably, if strict liability were the rule, search engines would be required to engage in the proactive monitoring and removal of potentially infringing material in order to escape liability for third-party content.

Despite the importance of the issue and the critical impact on certain internet business models, case law in Argentina was diverging, with different courts (and even different sections of the same court of appeals) applying opposite standards.

In this context, the Supreme Court ruling comes as a welcome development.

Facts

The case was brought by a model, María Belén Rodríguez, who initially sought a first-instance ruling ordering Google Argentina and Yahoo! to:

  • remove all search results associating her name with websites of a sexual, pornographic, erotic or similar nature;
  • remove all thumbnails depicting her image from the search results; and
  • pay damages of Ps300,000 plus interest, as a result of her name and personal image being associated with sites of an offensive nature.

Applying a fault-based liability standard, the court of first instance ordered Google and Yahoo! to pay damages of Ps100,000 and Ps20,000 respectively, plus interest and litigation costs. The court also ordered the takedown of all search results linking the plaintiff to websites of an offensive nature, as well as all thumbnails depicting the plaintiff in association with such sites.

On appeal, the court of appeals:

  • upheld the application of a fault-based liability standard;
  • overturned the finding of liability on the part of the search engines, on the basis that their activity is protected by the right to free speech;
  • released Google and Yahoo! from all liability for search results directing users to third-party websites, also on the basis of the right to free speech;
  • ruled that the use of the plaintiff’s photographic image in the form of search result thumbnails was indeed unlawful;
  • ordered Google to pay damages of Ps5,000 for such use; and
  • released Yahoo! from all liability associated with search result thumbnails, on the understanding that the plaintiff did not show that this search engine showed these miniature images together with the search results.

Both parties filed an extraordinary appeal before the Supreme Court. Public hearings were held on May 21 and 29 2014, with the participation of amicus curiae.

Supreme Court ruling

In a ruling rendered by Justices Ricardo Luis Lorenzetti, Carlos S Fayt, Elena Highton de Nolasco, Juan Carlos Maqueda and Eugenio Raúl Zaffaroni (with Justices Lorenzetti and Maqueda concurring partially in dissent), the Supreme Court held that search engines should be held accountable not under a strict liability standard, but pursuant to the principles of fault-based liability (Point 15). The court further held that a lack of strict liability excludes any proactive monitoring obligations on the part of search engines (Point 16).

The Supreme Court stated that search engines may be found liable for third-party content if they have actual knowledge of its infringing nature and fail to take corrective steps thereafter. In this regard, Section 1109 of the Civil Code is fully applicable. Therefore, since the court of appeals 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.

In an obiter dictum, the Supreme Court touched on the type of notice that must be served on search engines so as to establish actual knowledge – that is, whether an extrajudicial warning is sufficient or whether notice must be served through an official authority. In this regard, the court stressed the need to distinguish between cases where the infringing nature of the content is blatant and those where the violation is debatable, is doubtful or requires further analysis. Blatant cases where an extrajudicial notice would suffice include: “child pornography, information that facilitates the commission of a crime, information that puts the lives or safety of others at risk; incitement to violence, racism, genocide or any other type of perverse discrimination; information on pending judicial investigations that must remain classified; libellous statements and remarks, clearly fake photo montages, photographs that clearly and evidently depict acts of an unmistakable private nature although not necessarily sexual acts.” In all other cases, the search engine may not be called upon to replace judicial scrutiny and thus notice must be served through a court.

Finally, the Supreme Court ruled on the use of thumbnails, a practice that was found to be no different from including links to third-party websites on the search results. Therefore, the court held that search engines are not liable under Section 31 of the Intellectual Property Law (11,723) insofar as they act as mere intermediaries, unless they fail to take corrective measures after being properly served with formal notice of the infringement.

Andrés O’Farrell ([email protected]) and Gustavo Giay ([email protected]) are partners at MarvalO’Farrell & Mairal 

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