Supreme Court Held Public Hearings in a Landmark Case about Liability of Online Intermediaries

Like many countries throughout the world, Argentina finds itself grappling with the complex issue of liability for Internet Service Providers (“ISPs”) or internet intermediaries (“IIs”), such as search engines, regarding the information they provide to users. In a case currently before the Supreme Court of Argentina in which a fashion model brought suit against Google Argentina and Yahoo! seeking an injunction that would force two of the world’s most popular search engines to remove results that link that model’s name to third-party pornographic websites as well as damages, the Court must decide which right it values more—an individual’s rights to privacy and to control personal information or the public’s rights to freedom of information and to freedom of speech and expression.
Outside of Argentina, there are widely contrasting views on this issue. Unlike the European Union or the United States, however, Argentina has no legislation on the books addressing liability of ISPs or IIs regarding search results revealing personal information via links to third-party-generated content. Therefore, in cases involving ISP liability, the courts have typically relied on general civil law damage principles, applying the standards either of fault (based on Sections 509 and 1109 of the Argentine Civil Code) or of strict liability (based on Section 1113). In these cases, the National Court of Appeals in Civil Matters has been inconsistent not only in deciding which standard of liability should apply but also in deciding liability once it has settled on a standard, which has made predicting liability for ISPs and IIs very difficult.
The Supreme Court agreed to hear the model’s case (Belen Rodriguez v. Google, Inc., et al.) so that they could establish a universal standard of liability for ISPs and IIs and reconcile the contradictory rulings of the lower courts regarding this issue once and for all.
In her original complaint, the model petitioned the court to force both Google Argentina and Yahoo! to: (1) remove any search results linking her name with third-party sites of a sexual, erotic, pornographic, or related nature; (2) remove any thumbnails with her likeness from the results pages of their image search function; and (3) pay her AR$ 300.000 plus interest in indemnification for damages she alleges she suffered as a result of the links to the offensive third-party sites and the thumbnails with her likeness. The court of first instance applied the standard of fault—not strict liability—and found Google liable for AR$ 100,000 in damages plus interest and court costs, found Yahoo! liable for AR$ 20,000 in damages plus interest and court costs, and ordered both defendants to remove any results linking the model’s name with third-party sites of an offensive nature from their web search results and any thumbnails with the model’s likeness from their image search results. On appeal, the Court of Appeals: (1) maintained the standard of fault; (2) threw out the ruling from the court of first instance on the basis that freedom of expression protected search engines; (3) released Google and Yahoo! of all liability with regard to the web search links aspect of the complaint based on freedom of expression protections; (4) declared the use of thumbnails with the model’s likeness to be unlawful; (5) ordered Google to pay AR$ 50,000 in damages for the unlawful use of those thumbnails; and (6) released Yahoo! of all liability with regard to the images search aspect of the complaint as the court could find no evidence that Yahoo! had published any thumbnails of the model in its image search results. Upon the case’s elevation to the Supreme Court, the Prosecutor before the Supreme Court advised the Court to reject the claim and affirm the ruling of the Court of Appeals based on the Court’s prior opinion in re “Da Cunha Virginia c/ Yahoo de Argentina S.R.L. y otro s/ Daños y Perjuicios”.
Recognizing the importance of this case due to the several constitutional rights at stake, the Supreme Court called for public hearings to consider these issues, the first of which was held on May 21 and the second on May 29.
At the first hearing, representatives for parties filing Amicus Curiae briefs were each given ten minutes to present their position before the Court.  Seven parties presented in all, with five coming in against imposing any liability for ISPs and IIs for linking individuals’ names to damaging third-party content, favoring a system similar to that of the United States where ISPs and IIs have no obligation to protect individuals’ personal information, and equating anything to the contrary with censorship and violations of the rights to freedom of speech and expression. Of the two that argued for imposing liability for ISPs and IIs, one seemed to advocate for a standard of strict liability for ISPs and IIs when he said that the state has an obligation to protect its citizens from harm resulting from the internet just like as it would protect from harm resulting from any other man-made invention. The other argued for a more nuanced approach similar to a standard of fault and the European Union system in which individuals can request the ISPs and IIs to block or remove certain search results if they feel the results violate their rights to privacy or to control personal information.
On May 29, the second public hearing was held, and attorneys for the three parties each made oral arguments before the Court. Counsel for the model focused their argument on the need for search engines to take responsibility for what is shown in their web search and image search results. They mentioned that the search engines already have the power to filter offensive search results, such as child pornography or terrorist propaganda, using tools like Google’s “Safe Search”,  and thus, should use that same power to prevent results like those in question in this case—results that defame someone by linking that person’s name to third-party pornographic websites. The justices each challenged counsel with several questions attempting to clarify their position. These questions received the responses that the responsibility for defamatory results lies with the search engines and that they indeed have the capability to filter them; however, they never seemed to resolve the justices’ reservations regarding the feasibility of their proposed solution of forcing the search engines to undertake preventative measures to identify and filter out offensive links from their web search results and illegal or unauthorized thumbnails from their image search results. The justices also questioned counsel’s failure to attempt to request that Google and Yahoo! remove the offending search results before bringing suit as well as counsel’s assertion that the model could not foresee the images of her that she authorized to be published in magazines being republished on the internet.
Counsel for Google made very clear from the outset that Google and other search engines like it were simply intermediaries and not the creators of the content that appears in its web search and image search results. They also explained to the Court that while they do have a tool that attempts to weed out offensive content or content not suitable for minors called “Safe Search”, it is by no means a perfect process and mistakes, such as false positives or unsuitable content that evades the filter, are common due to the fact that it is a completely automated process. This, counsel asserted, is why they also have a human-operated system that allows users to request the removal of content that is offensive or defamatory or that violates copyright from its search results, with all requests being reviewed by Google employees on a case-by-case basis and most requests being honored.
Finally, counsel for Yahoo! argued that by taking the proactive measure to block all results for any search using the model’s name, they did everything that they could reasonably do to prevent the foreseeable harm, thus eliminating any liability under a standard of risk. Similarly, they argued that they were also not liable under a standard of fault because they took the aforementioned proactive action and were not the ones causing this material to be on the internet. The justices had only one question for Yahoo! counsel regarding why it took such drastic action to remove a whole block of results in response to the model’s complaint. They responded that while they agree with Google regarding the importance of freedom of speech, they simply do not have the same resources at their disposal that Google has to address matters such as these.
The Supreme Court will issue its opinion in the coming weeks. Wherever it chooses to plant itself in on the spectrum between individual rights to privacy and to control personal information and public rights to freedom of information and freedom of expression, there is no doubt it will be a landmark decision for ISP and II liability in Argentina, one whose impact will surely be felt not only across Argentina but also across the region.