New Ruling on Search Engine Liability

The facts of the case are the following: Model Valeria Mazza sued Google and Yahoo, claiming that they had made an unauthorized use of her image, and that they had violated her personal rights by associating her with pornographic websites (“Valeria Raquel Mazza v. Google Inc et all”, Argentine Court of Appeals in Civil Matters, Division L, July 11, 2018).

The court of first instance filed in favor of the defendants, applying the precedent set by the Argentine Supreme Court (“CSJN” after its acronym in Spanish) in “Belén Rodriguez v. Google” (for more information see Fault- Based Liability Standard for Search Engines’ Policies).

The ruling was revoked by the Argentine Court of Appeals in Civil Matters (the “Court”), which ruled in favor of the claimant and sentenced Google and Yahoo to pay ARS 800,000 and ARS 450,000, respectively, as compensation for material and moral damages.

The decision in this ruling was not unanimous, and the majority was formed by the votes of Judge Perez Pardo and Judge Liberman.

In her vote, Judge Pérez Pardo refers to the criteria set by the CSJN in the “Belen Rodriguez v Google” and “Carolina Gimbutas v Google”, which establishes that search engines are liable for the content of third parties when they become aware that it is illicit and fail to act diligently.

Pérez Pardo found that Google should be held liable, even applying a fault-based liability rule, because it had failed to comply fully with its obligations under a precautionary measure granted in favor of the plaintiff.

Furthermore, Judge Pérez Pardo differed from the precedent set by the majority in “Belén Rodriguez v. Google” in connection with image search services. Instead, she concurred with the opinion held by the minority of the CSJN in that precedent, and found that search engines edit, reproduce and use images when providing their image search services. Consequently, Pérez Pardo concluded that the rights of the claimant were infringed by the publication of her image without her consent.

Judge Liberman, who mostly concurred with the majority vote, emphasized that Google and Yahoo are commercial companies which obtain huge profits with their activity and should be liable for any damages they cause. Moreover, he considered that the liability of search engines should not be fault-based, but objective, and grounded on the risks generated by the company.