Case Watch: Top Argentine Court Blazes a Trail on Online Free Expression

On October 28, the Supreme Court of Argentina issued a groundbreaking judgment on the question of whether search engines are liable for unlawful third-party content appearing in search results. The ruling, in Belén Rodriguez v. Google, is one of the first of its kind in Latin America and will have important repercussions for Internet freedom in Argentina and beyond.

The Case

Maria Belén Rodriguez, an Argentine fashion model, sued Google and Yahoo! Argentina in connection with search results that linked her to several pornographic websites. The claimant argued that even though it was the third-party sites that had violated her reputation, privacy, and image rights, the search engines had contributed to such primary violations by including links to those sites in their search results. In addition, she claimed that by including copies of photographs of her (known as thumbnails) in their search results, the defendants had violated her right to control her image under Argentine copyright laws. She demanded that the search engines omit such search results in the future and pay damages for the harm caused.

The case, the first of its kind to be decided by the top national court, raises important issues of so-called intermediary liability on the Internet. Many democratic countries, including the United States and European Union jurisdictions, do not hold online operators liable for third-party violations (such as in user comments) since this would force service providers to closely monitor and censor the vast amount of Internet communications they facilitate. The Argentine legislature, however, has not to date passed any laws regulating this field, leaving it to the courts to solve such novel issues.

The lower courts hearing the case had decided that the search engines were not generally liable for third-party violations until a court ordered them to remove or disable access to the illegal content. However, they found the search engines liable for the use of thumbnails—copies of photos of the claimant lawfully published by other websites—on the theory that this amounted to unauthorized republication of such images under copyright law.

The Justice Initiative submitted a “friend of the court” brief in the case, arguing that search engines should not be liable for unlawful third party content. (A similar brief was filed earlier by the Justice Initiative in the case of da Cunha v. Argentina, which is still pending before the Argentine Supreme Court).

The Judgment

The first question before the court was whether the search engines could be subject to some form of ex ante or strict liability for third-party violations; in other words, were they responsible even if not notified by the affected party or a competent authority. The court unanimously rejected such an approach, dismissing claims that the defendants had engaged in inherently risky activities and should therefore be subject to no-fault liability for harm to third parties.

In doing so, the court noted that search engines play a “key role in the global dissemination” of online content by greatly facilitating access to and identification of data relevant to billions of users. The clear trend in the laws and practices of democratic countries is to limit the liabilities of intermediaries, either altogether or at least insofar as they have no “effective knowledge” of third-party violations. There could be no general duty for intermediaries to police the legality of third-party communications.

Turning to the question of what constitutes effective knowledge for these purposes—which might trigger responsibility for failure to prevent further harm to the affected party—the Argentine court pondered whether a private notification or complaint should be sufficient, in the absence of a finding of illegality by a court or other competent authority. This is a crucial question, because a system based purely on private notification would lead to abusive complaints and the likely censoring of perfectly lawful content, without the safeguards of judicial review. This would amount to widespread private censorship.

The court noted, in response, that, in general, only a finding of illegality and relevant notification by a court or other competent authority could place intermediaries on notice. However, the court conceded that in a few cases of “gross and manifest” harm, involving content whose illegality is beyond doubt, a proper notification by the affected party might be sufficient to require intermediaries to act. Such categories may include child pornography, speech that directly endangers the life or physical integrity of others, clear incitement to violence or discrimination, or clearly unlawful publications that grossly violate individual privacy or cause deliberate harm to one’s reputation.

The above findings were all unanimous. The court split 3-2 in resolving the final two questions. The first of these concerned the claimant’s demand that the search engines adopt a filtering system to prevent similar search results (linking the claimant to pornographic websites) from appearing in the future, a request that the lower court had denied. This is an important point because such filtering systems are difficult to implement from a technical perspective, have a tendency to result in overblocking of legitimate content, and make search engines the arbiter of lawful speech. The majority of the supreme court agreed with the defendants that such a system would come dangerously close to prior restraint, which is only allowed in a very few exceptional cases by the American Convention on Human Rights and national jurisprudence (mostly to prevent serious harm to children). Based on the court’s ruling, claimants and courts will henceforth be required to provide intermediaries with the precise location of unlawful content to be disabled, rather than with open-ended demands.

The two dissenters, including the chief justice, argued that a duty to prevent future harm could be workable in circumstances where future illegal content can be easily identified as similar to what has already been found to be unlawful.

Finally, on the question of thumbnails, the majority found that their use by search engines could not be considered unauthorized reproduction under national copyright laws. The dissenting judges argued that copyright laws allowed for few exceptions to the principle of explicit authorization, and search engine thumbnails were not among them.

The court rejected therefore the claims of Belén Rodriguez in their entirety.

Implications of the Ruling

The Belén Rodriguez ruling is not only the first of its kind in Argentina, but also perhaps the first in Latin America to address in depth the question of intermediary liability. It is particularly significant because national legislatures have been slow to adopt new legislation on these matters—in fact, Brazil is the only country in the region to have adopted a comprehensive legal framework on Internet freedom, known as the marco civil da Internet.

The judgment is also noteworthy for the relatively high level of protection that it provides for the free flow of information and ideas online. Together with the Brazilian marco civil, the Argentine court’s approach could pave the way toward a third major model of intermediary liability regulation globally, sitting somewhere between the US and European approaches. This model would be more speech-friendly than the EU legal framework, which generally allows for more liberal use of private notice and takedown of online content. The US model grants intermediaries virtually complete immunity from civil actions related to third-party content—with the exception of copyright violations, which are governed by a separate legal regime of notice and takedown.

The Argentine court conceded that its guidelines on the question of effective knowledge and private notification are meant to fill the current gap in legislation. Subject to constitutional constraints, the national legislature may choose to regulate intermediary liability somewhat differently, and there are aspects of it that have not been discussed in the judgment at all, such as who is an intermediary. However, it is hoped that the judgment will spur the Argentine Congress into action, and that the legislature will follow the broad markers set by the court.

Finally, some elements of the judgment may be in need of better definition. For example, concerns have already been raised about the implications of the language on deliberate attacks on one’s honor/reputation (lesiones contumeliosas al honor in the Spanish original), which could provide a rather open-ended basis for private notice and takedown whenever defamation is alleged. But for now, it is important to recognize the power of the court’s ruling in protecting online free expression—in Argentina and potentially beyond.