The Argentine Supreme Court Issued a New Decision on the Liability of Search Engines

Argentina does not yet have specific regulation on the liability of Internet service providers (ISPs) for third-party generated content.

Consequently, when faced with cases involving ISP liability, courts have applied the general civil law principles on damages. In this context, the decision rendered in 2014 by the Argentine Supreme Court (“CSJN” after its acronym in Spanish) in the Rodriguez case has been extremely influential (for further information see "Fault- Based Liability Standard for Search Engines’ Policies"). In Rodriguez, the CSJN found that search engines are only liable for content generated by a third party if they gain actual knowledge of such content, and fail to act diligently.

In the Gimbutas’case, just like in Rodriguez, a well-known model sued Google for damages based on the unauthorized commercial use of her image and the infringement of her personal rights. However, in Gimbutas the claimant also filed a habeas data action and claimed the protection of Personal Data Protection Law No. 25,326.

The CSJN, in a split decision, confirmed the ruling of the lower court and dismissed both actions. In doing so, it reaffirmed that search engines may be found liable for third party content only when they have actual knowledge of the infringement and fail to act diligently.

Interestingly, in Gimbutas the CSJN also stated that a search engine may be found liable when it ceases to act as a mere intermediary and plays a more active role in relation to the content generated by a third party. In doing so, the CSJN endorsed part of the minority decision rendered in Rodriguez, and provided further instances in which ISPs may be found liable.

Moreover, the CSJN held in both cases that the indexing of images through thumbnails does not infringe image rights. It stated that thumbnails are essentially a linking method, which does not differ greatly from a content or word search, and that consequently search engines should not be held liable for indexing the images and making them available to their users.

This decision was rendered while the Argentine Congress is discussing a bill aimed at regulating ISP liability. In November 2016, the Senate preliminarily approved a draft bill on this subject (for further information see "ISPs’ Liability"), which is currently pending before the House of Representatives.