New Court Decision on Search Engine Liability

The facts of the case are the following: The claimant filed a court action against Yahoo! and Google, claiming that they had made an unauthorized commercial use of her image, and that they had violated her personal rights by associating her to pornographic websites (Argentine Court of Appeals on Civil Matters, Division A, “Maiorana, Analía v. Yahoo de Argentina SRL”, April 19, 2018).

The court of first instance ruled in favor of the claimant and ordered Google and Yahoo! to pay the amounts of ARS 400.00 and ARS 150.000, respectively, and to take all necessary measures so that the claimant’s name and image would not be associated in the future with websites of sexual and/or pornographic content. This ruling was partially confirmed by the Court of Appeals.

In the first place, the Court of Appeals referred to the precedent set by the Argentine Supreme Court in “Belén Rodriguez v. Google” (for more information on this case see "Fault- Based Liability Standard for Search Engines’ Policies"). It stated that in that case, the Argentine Supreme Court found that the liability of search engines must be evaluated based on a standard of fault analysis, and that they can be liable for third party content if they are made aware of a possible infringement and fail to act diligently.

Consequently, the Court of Appeals analyzed whether the defendants had acted diligently, once they had been notified of the infringing content. It evaluated how they had acted in response to a preliminary injunction requested by the claimant, which the court granted and which required the search engines to cease associating the claimant with certain pornographic content. After this analysis, the Court found that Yahoo! had acted diligently, while Google had not.

Secondly, the Court of Appeals analyzed whether the claimant should be compensated for the use of her image made by the search engines’ image search service. In this matter, the Court of Appeals differed from the precedent set by the majority in “Belén Rodriguez v. Google”. Instead, it concurred with the opinion held by the minority of the Argentine Supreme Court and expressed by Judges Lorenzetti and Maqueda, and found that search engines do indeed edit, reproduce and use images when providing their image search services. Therefore, it concluded that Yahoo! and Google infringed the claimant’s rights by making an unauthorized use of her image.

Consequently, the Court of Appeals overturned the ruling against Yahoo! based on its lack of diligence. However, it also ruled that Yahoo! and Google had to jointly pay ARS 210.000 and ARS 1.500.000 respectively, for unauthorized use of the claimant’s image and as compensation for moral damages.