Standard for ISP Liability Slightly Downgraded by Civil Court of Appeals

A recent decision by the Civil Court of Appeals set forth that search engines may be found liable for third party content if they are served notice about a possible infringement regardless of whether the corresponding URLs are identified (Civil Court of Appeals, Division H, “O., P. L. v. Google”, Docket No 56210/2010, decision dated December 3, 2015).

The case was brought by the plaintiff P. L. O. seeking compensation for damages as a result of the dissemination through the search engine of the defendant of an unfavorable comment depicting him as a scammer, which allegedly affected his honor.

Applying a fault-based liability standard, the first instance court dismissed the claim in the understanding that the defendant acted diligently after receiving notice of the possible infringement, this is to say, taking down the objected content.

On appeal, Division H of the Civil Court of Appeals overturned the finding of liability and ordered Google to pay damages in the amount of AR$ 40,000, plus interest and litigation costs. In that connection, the Court concluded that most people are not expert in these technical matters so in regard to the actual knowledge that the search engines must receive in order to be found liable, it would suffice to merely indicate the facts that allegedly cause harm, and that it is not necessary to expressly identify the URL in which said content is located.

In so deciding, the Court made express reference to the landmark decision from the Supreme Court in re: “Belén Rodriguez v. Google” under which it was ruled that search engines may be found liable for third party content if they have actual knowledge of the infringing nature of the content and fail to take corrective steps thereafter. Such actual knowledge came from the express notification of the corresponding URLs containing the allegedly infringing content.

Although this decision is important, it should be emphasized that in the specific case under analysis there was just one URL to take down with allegedly infringing content, so it is possible that this criteria would not apply to cases with multiple URLs with objected content.