Criminal Liability of Website Operators

A Criminal Judge of First Instance indicted the operators of the website www.taringa.com.ar as necessary accomplices to the crime of unauthorized reproduction of a protected work, under Section 72.a of Intellectual Property Law No. 11,723.

Even when the actual perpetrators were the individual users of the website in question, the Judge ruled that the defendants facilitated the illegal posting and downloading of the protected material, thus guaranteeing its unauthorized reproduction. The Judge also gave special weight to the fact that the defendants failed to establish adequate controls to prevent this type of actions.

In this context, the Court ordered an attachment of the defendants’ assets in order to secure the sum of AR$ 200,000. Additionally, the Judge ordered that all contents in violation of Law No. 11,723 be immediately removed from the website, under penalty of arresting the defendants pending trial.

The website operators challenged the ruling, on the grounds that not only they did not promote the reproduction of protected works, but that the website’s terms and conditions explicitly prohibited such action. Moreover, they emphasized that the website did implement an active notice and takedown system, pointing to specific cases in which infringing content had been effectively removed. Finally, the defendants argued that the there was no evidence of an agreement with the actual perpetrators that would qualify them as accomplices to the crime in question.

Division VI of the Criminal Court of Appeals upheld the indictment.

In so deciding, the Court of Appeals considered that the defendants effectively facilitated the illegal reproduction of the protected material while clearly aware of the violation. In addition, the Court ruled that the website’s terms and conditions of use were not enough to exclude the operators’ liability.

However, the Court of Appeals annulled the order to remove infringing content under penalty of arrest, since the Judge of First Instance did not identify any of the circumstances that would warrant the defendant’s detention pending trial under applicable procedural law.

This ruling is not a conviction or a final conclusion on the defendants’ guilt. It is a judgment on the likelihood of participation in the actions under investigation, which holds the defendants to the criminal proceedings and clears the advancement of the investigation towards the oral trial.