Internet service providers’ liability

In re: “S.M y otros c/ Jujuy Digital y/o Jujuy.com y otros s/daños y perjuicios” the plaintiff filed a complaint against those responsible for the Internet site www.jujuy.com in order to make them liable for moral damages, since it was through this website that an anonymous message was transmitted accusing the plaintiff of adultery, which put into question the plaintiff and his wife’s good name and honor.

The Federal Court of Appeals of the City of San Salvador de Jujuy held that, first, while the Internet server offers the user the technical possibility of accessing the internet, it only has complete control over the content of the data when the server itself has created such data.

As regards Internet servers’ liability for the dissemination of illicit content prohibited by criminal code, the Court of Appeals found that a positive conduct must be proved, that is, active participation in the configuration of the content, or omission to do what is required (having knowledge of the illicit nature of the contents and with the possibility of avoiding their dissemination).

In the case in question, the defendants’ home page had a statement warning users that if the contents of any message adversely affectedother users, they would have to erase it. However, the defendants did not erase the defamatory message until they were required to do so through a certified letter.

Therefore, having proven the illicit act, the Federal Court of Appeals concluded that “the defendants’ liability is unquestionable in light of the provisions of Section 1113, second paragraph of the Argentine Civil Code, which determines liability for the risk or fault in the goods and chattels or, as held by some legal scholars, liability for dangerous activity (“actividad riesgosa”) by the company”.

On the other hand, it is worth mentioning that the Federal Court of Appeals held that information energy can be included in the concept of “goods and chattels ” within the terms of Section 2311 of the Argentine Civil Code, as is the case with electric energy.

For these reasons, the Federal Court of Appeals accepted the complaint and set the moral damages at AR$ 20,000 for each spouse, with legal fees to be paid by the defendants.

This is the first ruling in the country that deals with the liability of Internet service providers for damages caused by third parties.