(with Paula Vargas)
On October 29, the Argentine Supreme Court issued a landmark decision on intermediary liability in the case “R.M.B c/Google y ot. s/ Ds y Ps (Fallo R.522.XLIX.)”. As reported in a previous blog post, the case discussed the question whether search engines are liable for linking in search results to third-party content that violates fundamental rights or infringes copyright. The decision was largely favorable to search engines. The Court (1) repudiated a strict liability standard and adopted a test based on actual knowledge and negligence; (2) requested judicial review for issuing a notice to take down content (except in a few cases of "gross and manifest harm"); (3) rejected any filtering obligation to prevent infringing links from appearing in the future; and, finally, (4) construed Google Image thumbnails as links and not Google’s own content.
The Court drew a bright line rule, which rejected a general obligation for search engines to monitor infringing content online and repudiated strict liability for intermediaries for torts derived from third-party content. In view of the Court, the application of a strict liability standard would have constituted an unreasonable burden to freedom of expression with serious chilling effects. Instead, the Court adopted a negligence rule, establishing that intermediaries would only be held liable if, after acquiring actual knowledge about a specific infringing content, they do not remove it promptly.
The Court decided that the appropriate mechanism to provide search engines with actual knowledge about third-party infringing content would be a notification from the affected party. In this case, the plaintiff never notified the defendants, Google and Yahoo, prior to the lawsuit. Therefore, the Court concluded that the search engines never acquired actual knowledge. As a result, they were not negligent for not removing the content nor liable for the third-party infringing content.
However, the Court did not require any counter-notice option for the uploader of the infringing content. The lack of counter-notice may be balanced by the fact that in most cases this notice and take down system will be judicially administered, rather than privately. Actually, the Court distinguished ostensible infringing content from other content. As the Court puts it, ostensible infringing content would be
child pornography, data that might be useful to commit a crime, that might endanger people’s lives, that promotes genocide, racism or any other discriminatory or violent action, that might trump crime investigations, that are a serious offense to honor, obviously faked pictures, or any serious invasion to privacy, publishing images that because of its nature are intended to be private, even if not sexual.
In the case of ostensible infringing content, a private notification from any person, not necessarily the affected party, would suffice. For any other content, a court or other competent authority should decide on its illegality and issue a notification to the search engines if any is necessary.
Moreover, the Court rejected any proactive monitoring obligations for search engines, such as adopting a filtering mechanism in order to permanently block links to the infringing content and prevent them from appearing in the future. The Chief Justice, Dr. Lorenzetti, signed a partial dissent on this point. Dr. Lorenzetti authored the new Civil Code, which was recently enacted (and, therefore, has no bearing on this case) and adopted a so called “damaging prevention principle.” Accordingly, in Dr. Lorenzetti’s dissenting opinion, this means that, after a notification, search engines could be ordered to prevent the content to be republished online, if technology allows that and the injunction is sufficiently specific.
Finally, the Court rejected the claim that the reduction of images into thumbnails turns them into Google’s own content. Links to third-party images, even if reduced in size, still remain third-party content. The web pages hosting the unauthorized images should be held liable for that infringing content. Google will be liable only if, after receiving a notification, it fails to remove the thumbnails linking to the infringing images. The Court gives equal treatment to links to images and text, considering both as “mere links.”
In conclusion, this case gives some breathing space to search engines that have been bombarded with lawsuits in the last few years in Argentina. The Argentine Supreme Court introduced a very high standard for taking down infringing content online. Judicial review will be always needed to take down or de-index content, except in a few specifically enumerated cases of blatant illegality. The reaction of the Argentine Congress to this decision is still to be seen. For now, this is a major win for freedom of expression.
Date published: November 5, 2014