Landmark Ruling on Internet Service Provider Liability

Photographs of a female singer were posted on several erotic and sexual services websites, to which internet users were directed when typing her name in the Google and Yahoo! search bar. 

The plaintiff sued Yahoo! Argentina SRL and Google Inc. for moral and actual damages, and requested that defendants be ordered to remove all pictures and references to her name in connection with the websites in question.

The Judge of First Instance ruled in favor of the plaintiff, awarding moral damages in the sum of AR$ 100.000 and ordering the removal of all links to the websites in question from the Google and Yahoo! search engines. However, the Judge did not award actual damages. 

On appeal, Yahoo! Argentina SRL and Google Inc. denied all liability, arguing that they simply provided information of the existence of the websites in question, which they did not create nor control in terms of content. 

Plaintiff also filed for appeal, challenging the Judge’s decision not to award actual damages on the grounds that the publication of her name and photographs in sexual services websites resulted in a significant loss of business for her.

In the absence of specific regulations governing Internet Service Provider (“ISP”) liability for user’s misdeeds, the Court of Appeals addressed the matter pursuant to the general principles of tort liability, for the defendants were not bound to the plaintiff by a pre-existing contract.

In this realm, the Court of Appeals applied the standards of fault based on Sections 509 and 1109 of the Civil Code rather than strict liability (Section 1113 Civil Code). In this sense, the Court gave special consideration to the fact that defendant ISPs did not create the websites in question, nor could they have been reasonably expected to exercise any form of control over their content.

With the applicable legal framework thus defined, the majority opinion found no liability on the part of the defendant ISPs and reversed the first instance ruling. 

Likewise, the Court held that in order to establish ISP fault based liability, it is not enough to show that the damaging contents of a third party website are accessible through the ISP search engines. In addition, the plaintiff must show that, upon receiving formal notification of the damaging content, the ISP failed to take the necessary steps to correct the situation and remove all links to the infringing websites. 

Otherwise ISPs would be burdened with constant monitoring of millions of different websites, many of which are constantly modified or even updated in real time.

Therefore, unless duly notified of the violation, ISPs will escape civil liability for the contents of third party websites. However, the Court of Appeals did not lay down any guidelines as to what constitutes an appropriate notification for the purpose of establishing fault-based liability.

It is also worth noting that the majority opinion gave special weight to the fact that Google’s terms of service specifically clarified that all information which the user may have access to through the use of the search engine is the sole responsibility of the person from which such content originated. 

The Court of Appeals also added in an obiter statement that a similar solution would apply in the case of a suit brought against an Internet Access Provider.