The opinion of the National Attorney General in the Da Cunha case regarding the responsibility of Internet intermediaries could be the first step towards  a Supreme Court case which will impact the entire region.

By Eleonora Rabinovich and Atilio Grimani *

In Argentina, the issue of responsibility of Internet intermediaries became visible as a result of a number of legal actions against Internet search engines, actions which have collectively created a jurisprudence which is very problematic for freedom of expression.

Judicial cases from recent years have generally involved celebrities complaining about the unauthorized use of their images by third parties or the linking of their names with webpages with reprehensible content.  More than 150 cases of this nature have been filed.  In these cases, plaintiffs have generally requested the elimination of the link between their name or image and the webpages which supposedly harm them. In some cases, plaintiffs have sought economic compensation for damage.  These demands have ocurred in various procedural stages.

Until now, there have only been two decisions involving the liability of search engines.  Most cases until now have addressed protective measures which errase the results of searches that actors consider violations of their rights. (See documents  here and here.)

The first, and probably most emblematic, case to arrive to the Supreme Court was Da Cunha.  In Da Cunha, actress, singer and conductor Virginia Da Cunha filed lawsuit against search engines Google and Yahoo! alleging they had damaged her image through linking her name and image and webpages with sexual, pornographic, and prostitution content.

The lower court ruled in favor of Da Cunha, arguing that even though they function automatically, search engines know and select the shown data, thus “participating in content selection.”  The judge held that the liability of the search engines was based on the fact of facilitating access to offensive content. The judge, however, overruled the issues of liberty of expression and the right to information, arguing that they do not constitute an absolute right and allow for restrictions upon abusive exercise.  The decision was repealed in the Chamber of Apeals, which found that it was impossible to fault the search engine and consequently reverted the order to compensate Da Cunha.

August 22 of this year, the National Attorney General delivered an opinion of the Da Cunha case (here).  Deputy Attorney General Laura Monti delivered a comprehensive opinion in which she considered the multiple facets of the case, stating that search engines were not liable, subjectively or objectively, for the content published by third parties.

After reviewing the regulations which apply to the case, the manner in which search engines technically operate, and the form in which they recompile information on the Web, Monti considered that the Argentine legal doctrine of “Campillay” applied. The “Campillay” doctrine, which the Argentine Court established several decades ago to protect the press when it acts as a mere intermediary of information generated by third parties, establishes that the press is not liable for the information it reproduces as long as it does so accurately and properly attributes it to the pertinent source.

Monti´s opinion maintains, in line with the “Campillay” doctrine, that these search engines are not liable for controlling the content. She also acknolwedges the undeniable role they play in the organization of information and its consequent accessibility.  To the contrary, the dictamen affirms that holding intermediaries responsible for content generated by third parties would inhibit freedom of expression and public debate, providing more incentives for self-censorship.  Two years ago, the Association for Civil Rights (ADC) presented an amicus curiae in the case which referred to the aforementioned arguments (here).

The National Attorney General aligns its opinión with the UN Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinon and  expression (here), the joint declaration of  various freedom of expression raporteurs (here), and local civil society agencies.

While the opinion could represent an important step towards the protection of human rights and liberty of expression in particular, it is not legally binding, and, thus, cannot guarantee that the Court will adhere to it.  Expectations are high: the Court’s decision will be crucial to modifying a problematic civil jurisprudence and clarifying the constitutional principles at stake.  This case will ultimately be an important milestone in legal discussions of freedom of expression not only in Argentina, but also in other countries in the region.

* Atilio Grimani and Eleonora Rabinovich, Association for Civil Rights (ADC)
E-mail: agrimani (at) adc.org.ar; erabinovich (at) adc.org.ar