A review of Argentine case law on liability of intermediaries. Ambiguous judgments and how the lack of regulation on the subject can affect legal certainty.

By Daniela Schnidrig and Veronica Ferrari[1]

Translated into English by Paula Arturo

Argentina has no specific regulations on liability of intermediaries. What does this mean? It means that in judgments involving an intermediary – i.e., an internet service provider, search engine, or platform[2]– judges may freely resort to whatever norms they deem applicable to the case when considering whether the intermediary is accountable or not.

Although Congress is currently discussing draft resolutions for regulating this subject,[3] courts have based their decisions on different criteria and arguments. In general, judgments have been founded on articles 1,109 and 1,113 of the Argentine Civil Code. Article 1109 provides a subjective liability regime – i.e., judging the behavior of the agent, who will only be held accountable if he or she acted with fault or negligence. Article 1113 is more strict and provides an objective liability regime – i.e., the agent is always accountable for any damages caused by things under his or her control, except in cases in which he or she can prove fault on behalf of the victim or a third party.

This lack of specific legislation on the issue results in inconsistent decisions in Argentine case law. In fact, sometimes even within the same case, different instance courts may apply different liability regimes. Such was the case of entrepreneur Esteban Bluvol[4] who filed a lawsuit against Google after discovering a blog written in his name that was detrimental to his business. Two different instance courts applied two different liability regimes. The first instance judge, upon deeming the suit admissible, condemned the search engine to compensate the entrepreneur on the basis of the objective liability regime. Upon appeal, the second instance court found the prior decision inadmissible under the grounds that, as an intermediary, Google should not automatically be held accountable for the unlawful actions of third parties; and that, given the volume of information circulating the web, it is impossible for Google to oversee all contents before they are published. Although the court found Google liable, it applied the subjective liability regime and embarked on an analysis of the search engine’s conduct, which it then deemed negligent in this particular case.

Other paradigmatic cases involve celebrities versus search engines. In the Da Cunha case, the singer filed a lawsuit against Google and Yahoo demanding both compensation as well as the removal of her image from porn sites. The Court of Appeals applied the subjective liability regime, finding that the search engine could only have been held accountable if it had been notified of these contents and had failed to remove them. Da Cunha appealed this decision and the Argentine Attorney General[5] recommended that the decision of the Court of Appeals be upheld on the basis of the doctrine established in the “Campillay” case, where search engines were found unaccountable for the conduct of third parties provided statements were not linked to their source, were phrased in passive form, or lacked information on the identity of the protagonist. The Supreme Court has yet to issue a decision on this case.

Another paradigmatic case revealing the problems caused by this lack of legislation, and lack of knowledge by courts, is that of a precautionary measure issued by a first instance court ordering Google to block from its searches all sites containing videos of actress Florencia Peña having sexual intercourse.[6] The problem with this measure is that it does not involve simply blocking specific URLs, but any site that even alludes to the video.

In December 2013, in the Carrozo case,[7] the Court of Appeals ordered Google and Yahoo to compensate a fashion model for the use of her image in porn sites. In its judgment, the Court applied the objective responsibility regime on the grounds that the search engines were engaging in a risky activity, thus making them automatically responsible for any resulting damages.

Other court decisions have been founded on Intellectual Property Law No. 11,723[8] of 1933, which is considered to be one of the most restrictive norms in the world.

For example, in the Cuevana case (involving a site that has been streaming movies and series since 2009) a precautionary measure grounded on article 79 of the Intellectual Property Law ordered internet service providers to block certain contents, upon request from Turner Argentina.[9] In consistency with the above decision, the National Communications Commission ordered that these contents be blocked.[10]

Later, HBO, on the grounds of article 13 of the Intellectual Property Law, requested the “preventive” blocking of access to the entire site. However, this request was denied by the Federal Court of Appeals of Buenos Aires in February 2013, which deemed the measure “too broad and disproportionate” and found that “in the incipient investigation, it has not yet been determined whether Cuevana provides links or indexation of contents to isolated users or whether it is indeed controlled by actual individuals.”

In the same vein, in October 2013, the National Criminal Court of Appeals upheld Google’s acquittal in a copyrights case.[11] In that case, the Court of Appeals found that the search engine cannot be held accountable for the contents uploaded to Youtube because these contents “are not known by site administrators beforehand.” The Court found that, although Youtube’s activity could be deemed as “risky,” it is a “permissible risk,” because of the benefits posed by the promotion of cultural contents.

The diversity of the decisions described above reveals the lack of uniform criteria regarding intermediary liability. Because of this, Argentina and the Region alike need to advance in discussions for specifically regulating this issue.

A key question in the “Internet regulation” debate[12] is how to do it. CELE’s proposal is to work towards the promotion of clear and specific norms for regulating intermediary liability, instead of resorting to general legal frameworks. This involves regulations that respond to particular needs for preventing ambiguous, contradictory or disproportionate decisions that could potentially result in the violation of fundamental rights.