Fault- Based Liability Standard for Search Engines’ Policies

The case was brought by a model, Ms. María Belén Rodríguez, who initially sought a first instance ruling ordering Google Argentina and Yahoo: (i) to remove all search results associating her name from websites of a sexual, pornographic, erotic or similar nature; (iii) to remove all thumbnails depicting her image from the search results; and (iii) to pay damages in the amount of AR$ 300,000 plus interest, as a result of the association of her name and personal image to sites of an offensive nature.
 
Applying a fault-based liability standard, the Court of First Instance ordered Google and Yahoo! to pay damages in the amount of AR$ 100,000 and AR$ 20,000, respectively, plus interest and litigation costs. The Court also ordered the takedown of all search results linking the plaintiff to websites of an offensive nature, as well as all thumbnails depicting the plaintiff in association with such sites.
 
On appeal, the Court of Appeals: (i) upheld the application of a fault-based liability standard; (ii) overturned the finding of liability on the part of the search engines, on the basis that their activity is protected by the right to freedom of speech; (iii) released Google and Yahoo! from all liability for search results directing users to third party websites, also on the basis of the right to freedom of speech; (iv) ruled that the use of the plaintiff´s photographic image in the form of search result thumbnails was indeed unlawful; (v) ordered Google to pay damages in the amount of AR$ 5,000 for such use; and (vi) released Yahoo! from all liability associated to search result thumbnails, on the understanding that the plaintiff was not able to demonstrate that this search engine showed these miniature images together with the search results.
 
Both parties filed an extraordinary appeal before the Supreme Court. Public hearings were held on May 21 and 29, 2014 with the participation of amicus curiae.
 
In a ruling rendered by Justices Ricardo Luis Lorenzetti, Carlos S. Fayt, Elena Highton de Nolasco, Juan Carlos Maqueda and Eugenio Raúl Zaffaroni (with Justices Lorenzetti and Maqueda concurring in part and dissenting in part), the Supreme Court held that search engines must not be held accountable under a strict liability standard, but pursuant to the principles of fault-based liability (point 15). The Supreme Court further held that a lack of strict liability excludes any proactive monitoring obligations on the part of search engines (point 16).
 
The Supreme Court stated that search engines may be found liable for third party content if they have actual knowledge of its infringing nature and fail to take corrective steps thereafter. In this regard, Section 1109 of the Argentine Civil Code is fully applicable. Therefore, since the Court of Appeals ruled that neither Google nor Yahoo! were negligent in reacting to the takedown order issued by the Court of First Instance, the Supreme Court rejected the plaintiff’s appeal and released the defendants from all liability.
 
In an obiter dicta, the Supreme Court touched upon the type of notice that must be served on the search engines so as to establish actual knowledge. That is, whether an extrajudicial warning is enough or if notice must be served through an official authority. In this regard, the Supreme Court stressed the need to distinguish between cases where the infringing nature of the content is blatant, as opposed to those where the violation is debatable, doubtful or requires further analysis. Blatant cases where an extrajudicial notice would suffice include “…child pornography, information that facilitates the commission of a crime, information that puts the lives or safety of others at risk; incitement to violence, racism, genocide or any other type of perverse discrimination; information on pending judicial investigations that must remain classified; libelous statements and remarks, clearly fake photo montages, photographs that clearly and evidently depict acts of an unmistakable private nature although not necessarily sexual acts…”. In all other cases, the search engine may not be called upon to replace judicial scrutiny and thus notice must be served through a court.
 
Lastly, the Supreme Court ruled on the use of thumbnails, a practice that was found to be no different from including links to third party websites in the search results. Therefore, the Supreme Court held that search engines are not liable under Section 31 of Intellectual Property Law No. 11,723 insofar as they act as mere intermediaries, unless they fail to take corrective measures after being properly served with formal notice of an infringement.
 
In following the prevailing criteria in comparative law and case law, today’s decision closes an important discussion that has been held over a long period in Argentina in connection with the applicable liability standard to search engine activity.