By Giancarlo Frosio and Paula Vargas on May 3, 2016 at 1:40 am
Argentina is in the midst of an inflamed debate on the lawfulness of UBER services. The last stage of the UBER affair—previously visiting cities like Milan or Paris—occurred in Buenos Aires. Finally, a number of orders from different authorities led to the blockade of the UBER app. In addition, credit card services were enjoined from processing payments connected to the App. Multiple arguments served as a legal basis to the different orders, including the endangerment of passengers´ health and safety and tax collection.
Several institutional powers got entangled in this debate, often in a disconnected manner, creating an unnecessary legal ordeal. The President expressed his support to cab drivers; the President of the Communications Commission at the House of Representatives introduced a Bill in order to ban UBER; and—of course—the City of Buenos Aires judiciary was asked to prevent UBER from offering its service.
Initially, taxi drivers and owners’ unions filed a lawsuit against UBER and the City of Buenos Aires—which allegedly allowed the service. As a result a judge in Buenos Aires granted an injunction ordering the City of Buenos Aires to take any necessary action to block the circulation of UBER´s cars. Apparently, the Judge did not considered whether UBER was actually a public transportation company—it assumed it was. Neither he considered whether the public utility regime that regulates taxi services was even applicable, disregarding that—under Argentinean law—public utility regimes are not applicable by analogy. However, the Buenos Aires Court rejected blocking the Uber App, considering such a measure as “unconducive, lacking of arguments and possibly invading other jurisdictional powers.”
Shortly thereafter, a criminal prosecutor from the City of Buenos Aires issued an injunction ordering ENACOM (Argentina´s FCC) to block the UBER App. Apparently, ENACOM refused to comply with the injunction arguing that a local prosecutor was not a competent authority to order such a measure. On April 22, a criminal judge from the City of Buenos Aires ordered ENACOM to block UBER within the City of Buenos Aires jurisdictional limits. It is not clear whether ENACOM, a federal agency, will comply with a City of Buenos Aires order. Content circulation through communications networks is a federal matter in Argentina, which is supposedly beyond the reach of local government jurisdiction.
Finally, the Consumers Protection Agency of the City of Buenos Aires—an administrative agency—issued an injunction ordering telecoms to block the App and credit card companies to block any transaction related to the App. The injunction was issued against telecoms and credit cards as “contributors” to an allegedly harmful activity. A few days later, also a judge in Buenos Aires ordered credit card companies to cease their operations with UBER.
Besides the underlying discussion regrading the legality of UBER services under existing laws, the Consumer Protection agency decision—later reinforced by a narrower judicial order—is a surprising outcome under Argentinian law as contributory liability does not apparently exist in Argentina. According to civil law principles, a person or entity can be found liable for third-party activities under several legal theories, but not contributory infringement. Also, a local administrative agency ordering Internet content blocking might run counter the standards established by the IASHR Special Rapporteur on Freedom of Expression. The Special Rapporteur has clearly stated that online content blocking would require a judicial order or at least an agency with jurisdictional powers over the content.
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