Recently, the Supreme Court of Argentina heard arguments in Rodríguez, María Belén c/ Google Inc. y Otro s/ Daños y Perjuicios. The case requires the Supreme Court to decide for the first time whether Internet intermediaries - in this case, search engines Google and Yahoo - are liable for linking to content that violates fundamental rights or infringes copyright. It will also decide whether Google Image Search’s “thumbnails” infringe copyright law. Argentina lacks a specific law defining Internet intermediary liability. So, the preliminary question here is whether the Supreme Court will suggest that Congress pass a law regulating the matter or, in contrast, will extend the existing Civil Code provisions to intermediaries, sanctioning infringing activities through a strict liability or a negligence standard.
In the last few years, litigants—mainly models and actors—have filed hundreds of lawsuits against search engines claiming that: (1) their images and names appeared in search results linked to webpages displaying prostitution ads or pornography, in violation of their constitutional rights to reputation and privacy; and/or (2) the unauthorized commercial use of their images and names infringed the publicity rights protected by Article 31 of the Argentinian Copyright Law, both by linking to third parties’ content or by using them as search engines’ own generated content (“thumbnails”).
A small number of cases were based on Argentinian Data Protection Law. In these instances, the plaintiffs argued that search engines are databases and, therefore, personal data should be deleted at the request of the data owner.
However, the majority of the cases were decided according to Argentina’s general liability regime, which is based on negligence or strict liability. Some decisions - such as the Court of Appeal’s in the case S. M., M. S. c/ Yahoo de Argentina SRL y Otro s/ daños y perjuicios - found search engines strictly liable under Article 1113 of the Civil Code, which imposes liability, regardless of knowledge or intention, to those performing risky acts (e.g. indexing third party content creating wider audiences for illegitimate content) or serving as the “guardians” of the thing that generates the damage (e.g. the search engine’s software). Other courts decided that the conduct of search engines should be reviewed according to negligence rules.
In the case now before the Supreme Court, the Court of Appeals took a negligence approach. The plaintiff, a former model, sought an order requiring Google and Yahoo to: (1) permanently block from the search results the links to webpages displaying prostitution ads and pornography whenever they included her name or images, which allegedly violated her constitutional rights; (2) stop any commercial unauthorized use of her image and name, which allegedly infringed her publicity right and, 3) pay damages.
Specifically, the Court of Appeals first decided that strict liability is not compatible with freedom of expression and rejected the plaintiff’s request to apply strict liability.
Second, Argentina’s doctrine for press media liability - under which the press are not liable for damages unless they fail to cite sources (“Campillay” doctrine) or act with some sort of bad intent (also known as the “real malice” doctrine) - is not necessarily applicable to other modes of expression. In contrast, the Advocate General, who represents the public interest and submits non-binding opinions prior to a Supreme Court decision, advocated the opposite view.
Third, the Court of Appeals applied the negligence standard to search engines linking to third parties’ content in search results. The Court created a test under which search engines will not be liable, if (1) content is produced by a third party; (2) the claimant notifies the search engine, identifying the alleged infringing content; and (3) the search engine acts expeditiously to block the content via some “quick and effective filtering method.”
Finally, the appellate court considered image “thumbnails” displayed in search’s results as “Google’s own content”. These, therefore, fail the first prong of the new negligence test. No fair use defense is available under Argentinean law. Thus, Google must pay damages caused by the thumbnails, including, both for copyright and non-copyright claims, actual and moral damages, but not statutory damages, which are unavailable in the Argentinean legal system.
The question under review was especially thorny and the Court of Appeals may have overlooked at least two critical issues. First, this decision imposed on intermediaries an automatic private “notice and takedown” procedure while omitting any counter-notice. Second, the court did not distinguish between copyright infringement and, for instance, defamation or fundamental rights cases.
The Supreme Court then accepted review of the case and called for a hearing, a practice that it reserves only for very impactful cases.
At the Supreme Court hearing, the plaintiff insisted that search engines are liable under strict liability rules because they organize information according to their own criteria and they are the “guardians” of the robots that index the information. The Supreme Court Chief Justice promptly noted that linking to infringing materials would constitute negligence rather than risky activity. He also noted that if search engines had to be held liable as “guardians” of their own indexing software, any software developer could be held strictly liable under similar considerations. Finally, the Chief Justice also highlighted that search engines cannot know whether content is legitimate until they are notified by the rightsholder. In this case, the plaintiff did not notify the defendants prior to filing the lawsuit.
Later in the hearing, the Supreme Court judges focused on whether Google actually blocks content and when and how it does it. The Court asked Google if, once notified of infringing content, it would agree to the solution proposed by the Court of Appeal to take down such content. Google lawyers made clear that deciding content legitimacy without a judicial order is extremely difficult. However, the company also clarified that under the current Argentinian system, if someone proves to be exercising a legitimate right, claiming copyright infringement or a fundamental right violation, and asks for a content takedown, Google will, more likely than not, take it down. Then, the Supreme Court turned to whether a negligence standard is applicable to the case by investigating whether Google has an “active role” in organizing the indexing criteria of its search engines and operates some kind of filtering mechanism. Actual control over the organization of search results according to established criteria would be a necessary element to establish negligence. Accordingly, if search engines do not have any control over third parties’ content, they could not be held liable at all.
Finally, Yahoo explained that it decided to “over-block” any content related to the plaintiff, including some homonyms too), because it was the only option to avoid liability.
All in all, it seems highly probable that the Supreme Court will not apply a “strict liability” approach. However, it is not clear to which extent it will favor a negligence rule, affirming the appellate decision or maybe reframing the test more narrowly. Most likely, the Supreme Court decision will focus on the notification procedures and whether actionable take down demands can be purely private or would require judicial review. Also, the Supreme Court will whether search engines and other Internet services are treated as press media, requiring a showing of “real malice” before courts may impose liability.
How close is Google of being found liable for its “thumbnails” in Argentina? Close enough. This could be Argentina’s Congress’ opportunity to discuss copyright reform that includes a much-needed fair use exception for some unauthorized uses of protected works.