Supreme Court's Rodríguez v Google decision represents victory for search engines

In Rodríguez v Google Inc (October 28 2014), the Argentine Supreme Court of Justice has considered whether internet search engines may be held liable for third-party content that adversely affects personal rights where they have provided search results linking to erotic and/or pornographic websites, or used a person’s image without authorisation. The Supreme Court ruled that search engines may be held liable for third-party content only if they fail to remove such content after having been requested to do so, either by the courts or through a private request (notice and take down). 

Rodríguez brought suit against Google Inc and Yahoo! de Argentina SRL, seeking compensation for the damage caused to her honour and image by search results providing links to pornographic websites, and the removal of all links between her name/image and the websites specified in her complaint.

The first instance court admitted the complaint. It ordered Google and Yahoo! to pay Ps100,000 ($11,600) and Ps50,000 ($5,800), respectively, and to remove the links between the plaintiff’s name and the websites at issue.

The decision was appealed. The Court of Appeals dismissed the complaint against Yahoo!, and partially reversed the first instance court decision regarding Google.

First, the Court of Appeals stated that the liability of search engines should be deemed to be based on a duty (“subjective liability” under Section 1109 of the Civil Code) and that it was not a strict liability (Section 1113 of the Civil Code). Subjective liability requires the existence of negligence, which arises only when the search engine becomes aware of the existence of content that adversely affects third-party rights, at which point the search engine must take the necessary steps to remove the content at issue.

With regard to the so-called ‘thumbnails’ (which are reduced-size, low-resolution copies of an original image that are displayed in the search results with an express reference and a link to the website where the original image may be found), the Court of Appeals stated that Google should have obtained Rodríguez’ consent, pursuant to the legal duty to request the consent of an individual before reproducing their image. In the case of Yahoo!, the court reversed the decision because it had not been proven that the search engine used thumbnails representing the plaintiff. Likewise, the court refused to order the removal of all links between the name/image of the plaintiff and erotic websites.

Both Rodríguez and Google filed an appeal before the Supreme Court of Justice. Rodríguez’ appeal was dismissed, while Google’s appeal was admitted, and the Court of Appeals’ decision on thumbnails was reversed. In this respect, two Justices expressed their dissent, on the ground that the applicable rule is that the consent of the individual must be obtained before reproducing his/her image (Section 31 of Law No 11.723).

The decision of the Supreme Court of Justice may be summarised as follows:

• The rights at issue were the freedom of expression and of information on the one hand, and the right to honour and image on the other. With regard to the former, this freedom comprises the communication of ideas, facts and opinions posted on the Internet, and is a way to guarantee the freedom of information and the formation of public opinion. In contrast, the right to honour protects individuals against statements seeking to discredit them. According to the Supreme Court, the right to image forms part of the right to privacy afforded by the Argentine Constitution.

• Search engines are under no obligation to supervise or oversee the content that is uploaded to the Internet. Consequently, search engines are not liable for content that they have not created.

• The application of strict liability must be ruled out, on the ground that it attributes liability due to the risks arising from a conduct, irrespective of the existence of negligence.

• The liability of search engines is subjective in nature. They may be held liable if, after becoming aware of the unlawfulness of certain content, they fail to act diligently and to block the search results at issue.

• In an obiter dictum, the Supreme Court considered the type of notice that must be served on search engines in order to establish actual knowledge - that is, whether a private notice sent to the search engine is sufficient, or whether the notice must have been sent by a court or administrative authority. The Supreme Court distinguished between cases in which the damage is apparent, and those in which the damage is questionable or dubious and an enquiry must be carried out. In the latter cases, a mere notice sent by the allegedly injured party is not sufficient, and a court or administrative notice is necessary.

• Based on the above, the Supreme Court upheld the decision of the Court of Appeals insofar as it rejected the claim for damages.

• Given that thumbnails are images uploaded to a website to act as a link, the Supreme Court ruled that images must not be governed by criteria or rules that are different from those governing text, since both link to content that was not created by the search engines, which shall be liable only if they fail to act diligently once they have been notified of the breach. This was the opinion of Justices Highton, Fayt and Zaffaroni.

• The other two Justices gave a different opinion with respect to thumbnails. Justices Lorenzetti and Maqueda opined that the rule is that consent must be obtained before reproducing an individual’s image, and that in this case Google had not obtained such prior consent. Consequently, in the opinion of these Justices, the complaint should be admitted regarding thumbnails.

• Lastly, the Supreme Court examined Rodríguez’ claim for the removal of the links between her name/image and websites with sexual, erotic and/or pornographic content that were accessible through the Google search results. In this regard, the court stated that admitting the plaintiff’s allegations would amount to demanding that Google set up filters or blocks links in the future, which implied a restriction to the freedom of expression, and that any restriction to the freedom of expression must be construed restrictively. Consequently, the court stated that, except for certain extraordinary cases, censorship before publication is clearly unconstitutional. Liability for such content should be attributed only at a later stage in cases involving criminal offences or intentional torts.

The decision of the Supreme Court of Justice may have a significant impact on cases in which websites infringe the rights of trademark owners or licensees. Although the main matter at issue in this case was the alleged infringement of the plaintiff’s rights to honour and image, in many parts of the ruling the Supreme Court gave guidelines that trademark owners should keep in mind when facing infringements online, by not restricting its findings to these rights. Indeed, the decision contains a series of references that show that, if no legal framework provides for a different solution, the case law arising from this decision may be applicable to cases concerning links to websites whose contents infringe other rights, such as trademarks.

The decision made an express reference to the significance of the Internet as a tool to guarantee the freedom of information, and specifies the ways in which search engines may be made effectively aware of unlawful acts. In each case, it should be determined whether the existence of such unlawful act requires court examination, after which the competent court authorities must issue the relevant notice.

In this respect, the court stated that search engines may be held liable for the unlawful content of a website only when they fail to take the necessary steps to block the search results at issue after being made aware of the unlawful behaviour.

Regarding the issue of whether the display of a thumbnail with a trademark using the same graphic features as those used by the trademark owner may be attributable to the search engine, it is believed that, based on the findings of the Supreme Court, such reproduction is merely a link and, consequently, is deemed to be similar to text. Because both the picture and the text link to content that was not created by the search engines, the criterion applicable to both must be the same.

Lastly, with regard to the plaintiff’s claim that Google should remove all links between her name/image and erotic or pornographic websites, the Supreme Court concluded that this would amount to censorship before publication that was clearly unconstitutional; this decision was based on precedents that attributed ultimate liability only in case of breach of the exercise of the freedom of expression involving criminal offences or intentional torts.

Fernando Noetinger, Noetinger | Armando, Buenos Aires