On May the 21st, the Supreme Court of Argentina heard friends of the court in a case which confronts professional model Belén Rodríguez against Google and Yahoo!. It’s a controversy in which the Court will solve a key issue for the future of freedom of expression online: the liability of intermediaries for content produced by others.

By Ramiro Álvarez Ugarte*

One of the core features of the Internet is that it is decentralized: it’s a global network joining millions of computers which connect between each other transporting packets of information. And it is this decentralized nature which makes it impossible to surf the web without the assistance of indexes which capture and classify its contents. Search engines do precisely that job: they work as intermediaries between users and the information they do not know it exists. They do so through automatic crawlers, which go through its content in order to produce an index which is offered to users in the form of search results. These are classified according to principles embedded in search engine’s unique algorithms.

Many countries have chosen not to make intermediaries liable for this activity of automatic indexation. If they were to do so, they would create incentives for these companies to monitor and filter those contents they think could make them liable. It would make the Internet a more closed space, micromanaged by those players powerful enough to exert that kind of control.

It is this risk of private censorship which laws such as the Communications Decency Act wants to prevent in the US, and which is also followed by the European Directive on Electronic Commerce. It is, to an extent, what the Marco Civil wants to do in Brazil.

The case the Supreme Court of Argentina will decide soon is a direct consequence of a lack of regulation and on the use of old principles on civil liability to solve issues happening on the digital environment. As the Association for Civil Rights (ADC, in Spanish) has documented, there are hundreds of cases in Argentina’s lower courts that follow the same logic as the Rodríguez case. Models, actresses and singers are suing search engines because their name is linked to web pages with sexual content. They have been getting considerable damages, whether it is for strict liability or negligence. Argentina’s judges have judicially created the incentives other countries want to prevent through regulation and legislation.

The approach that should become pervasive is non-liability. That is what many friends of the Court stated during the hearing. As ADC did in a previous case which remains undecided and as Fundación Vía Libre and the CELE of the Universidad de Palermo did in the Rodríguez case, making intermediaries liable damages free speech online. And while other amicus in the last hearing made similar arguments, others —such as the National Office for the Protection of Personal Information— argued that search engines should be considered to be processors of personal information, thus liable to the law.

The criteria for non liability is suggested by comparative law, but —in a more meaningful way— by international reports by the United Nations and the Inter-American Commission of Human Rights, which recently issued a report on Freedom of Expression and the Internet in which similar recommendations are made. The Supreme Court, as other Latin American high-courts do, pays a lot of attention to International Human Rights Law. And international bodies are clearly leaning towards non-liability.

The Court generally issues its decision a few days or weeks after the hearings. Hence, soon in Argentina we will have a leading case on one of the most important issues for the future of freedom of expression online in Argentina and in the region.

*Ramiro Alvarez Ugarte is the director of the Access to Public Information Area of ADC.