Under a Fault-Based Liability Standard Internet Service Provider Found Not Guilty of Copyright Infringement for Providing Links to Infringing Content

The case was brought by María Kodama, surviving spouse of the well-known Argentine writer Jorge Luis Borges, seeking to condemn Taringa for copyright infringement. The case was initially led by the General Attorney.

Taringa (www.taringa.net) is an Internet Service Provider (ISP) enabling users to, among other things, share information and links in which to find videos, images, music, and movies. Users following those links can download the material to their computers using different technology, including torrents. The material is not located in Taringa’s own servers but rather in servers owned and controlled by third parties. In some cases, the material contained within Taringa and/or in those links infringes upon copyrights.

The plaintiff certified by a notary that the website “www.taringa.net/tags/Obrascompletas” contained different files which reproduced copyrighted material with no authorization. At the same time, the notary showed a link between Taringa and the well-known download services Mega Upload and 4Shared, which helped users download the materials more efficiently.

As a result of these circumstances, the General Attorney filed criminal charges against Taringa and its owners for copyright infringement.  He highlighted the fact that the website contained ads from reputable companies that in his opinion was triggered by the considerable traffic generated by the website’s ability to access infringing material.

The court of first instance dismissed the plaintiff’s claim in the understanding that Taringa was a mere intermediary and that after having actual knowledge of a possible copyright infringement it blocked access to the objected third parties’ websites.

On appeal, the Court of Appeals in Criminal Matters upheld the decision[1].

In so doing, the Court made express reference to the recent landmark decision from the Supreme Court in re: “Belen Rodriguez v. Google” under which the Supreme Court, in the course of civil proceedings,  acknowledged that search engines’ liability should be analyzed under a fault-based liability standard, on the basis of which they may be found liable for third-party generated content only if after having actual knowledge of any improper material, do they fail to take any remedial measures to prevent that material from being further accessed, as for example removing or blocking those results from appearing on their search results. At the same time, the Supreme Court concluded that the burden of identifying infringing content and notifying the defendant should be placed on the plaintiff. It added that a general obligation of monitoring should not be imposed on search engines.

In that connection, and on the basis of prior court cases from other divisions of the same tribunal[2], one of which was decided having an opposite criteria but which the court deemed superseded by follow up court decisions and legislation[3], the Court considered that Taringa had taken the necessary remedial measures once it had actual knowledge of the infringement, proceeding to remove the links to the objected materials. It is worth noting that on the basis of the same argument, i.e. timely removal of links to the objected material, the court of first instance rejected a petition by the plaintiff for a preliminary injunction.   

Furthermore, the Court acknowledged that the website administrator is not aware of the content that each individual user posts or uploads; therefore, it does not have a monitoring obligation. Their responsibility, if any, is only after they have actual knowledge .

This decision is important as it incorporates and reflects the analysis and conclusions provided by the Supreme Court in its recent decision dealing with search engine’ liability. Although the Supreme Court rendered its decision in connection with a civil law claim, the criminal Court found that its conclusions were also applicable when seeking a criminal sanction (i.e. that ISPs do not have a monitoring obligation for third party’s content and that their liability should be analyzed under a standard of fault).

[1] Court of Appeals in Criminal Matters, “Botbol, Hernan et al”, Division 1, May 5, 2015.

[2] Court of Appeals in Criminal Matters, “P.L. et al”, Division 5, October 28, 2013.

[3] Court of Appeals in Criminal Matters, “www….net et al”, Division 6, April 29, 2011.