Habeas data remedy aimed at blocking content of search engine is declared admissible in Argentina

The plaintiff requested an injunction aimed at ordering Google Inc. to block access to all the websites that were publishing information regarding the facts related to the investigation of the death of prosecutor Nisman and, at the same time, connected with the person of the claimant. The plaintiff argued that these articles were causing her personal damage and putting her personal safety and life at risk.

Her claim was based on section 38, subparagraph 4 of Personal Data Protection Law No. 25,326 (“PDPL”) which provides that the Judge may order provisional blocking of the file in relation to personal data when the discriminatory, false or inaccurate nature of the information in question is blatant or evident.

The plaintiff invoked the Argentine Supreme Court leading case “Maria Belén Rodriguez”. In this case, a model sued Google and Yahoo for linking her image and name to third-party websites displaying sexually explicit content. The plaintiff requested compensation for damages as well as the cease of use of her name and image and the removal of the URLs linking to her name, image and photos. The Argentine Supreme Court ruled that search engines could be found liable for third-party content if they had actual knowledge of the illicit content and failed to take remedial action. When the infringing nature of the content is blatant, effective knowledge takes places through a simple out-of-court notification. 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, acts that affect the right to honor, dignity and privacy of persons, among others. 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 or a competent administrative body.”

The injunction petition in this case was rejected by the District court. The plaintiff appealed this decision.

The ruling of the Court of Appeals dated May 16, 2017 partially reversed the District court’s decision and accepted the request of provisional blocking of certain URLs reported by the plaintiff that led to articles whose content was inaccurate.

In its decision, the Court of Appeals highlighted certain preliminary principles that must be taken into account to resolve the case. In that sense, the court argued that two essential interests that are in conflict must be evaluated: on the one hand, the right of society to be informed and to express and know all kinds of information, opinions and ideas through mass media such as the internet and, on the other hand, the rights of the plaintiff that could be affected by the use of said mass media. The Court of Appeals also emphasized that, although no rights recognized in the Argentine Constitution are absolute, the intervention of the courts must be extremely careful to prevent affecting the right of free speech. Consequently, the rights involved must be evaluated on a case-by=case basis to issue a reasoned and fair decision.

The ruling classified the URLs in two different groups, which, according to the Court, must be treated differently. As to the URLs whose articles contained personal information that was clearly incorrect -since the relevant articles informed that the plaintiff was found “burned”- the Court construed that her rights were affected and, consequently, there was a justification to order the defendant to provisionally block the content pursuant the provisions of section 38. 4 of the PDPL.

As regards the remaining URLs, which basically described the possible relation between the plaintiff and the investigation conducted in the "Nisman" case, the Court construed that, according to the records of the case, the information is not manifestly discriminatory, false or inaccurate nor would it endanger the physical integrity and the life of the plaintiff. In this context, the Court of Appeals held that the legal provision contained in the PDPL imposes a stricter standard on the requirement of existence of rights affected to grant the injunction in view of the fact that blocking access to the URLs restricts the possibility of providing information to the public. Ordering the blocking in the context of an injunction would restrict the search, reception and publication of information and ideas, which constitutes a right recognized and protected by the Argentine Constitution and law No. 26,032 which protects freedom of speech through the internet. Therefore, the Court concludes that granting the injunction petition concerning these URLs would represent an unjustified restriction of freedom of speech that it is not proportional to its purpose.