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LEGISLATIONArgentine Civil Code, September, 1871 (articles 1109 and 1113 as modified by Law 17.711 of July 1, 1968) [Although Argentina does not have any specific legislation regarding Internet Service Providers’ (ISP) liability, Articles 1.109 and 1.113 of the Argentine Civil Code are used as references for court cases and decisions: (1) Article 1.109. Any person performing an act, which through his fault or negligence causes damage to another, is obliged to repair the damage. This obligation is governed by the same provisions to which the offenses of the civil law are subject. (2) Article 1.113: The obligation of anyone who causes damage extends to any damage caused by those who are under his/her control or by the things used or under his/her control. In cases of damages caused by things, to avoid liability the owner or custodian must evidence that he has not acted with fault or negligence. However, If the damage is caused by a risky thing or by a defect in the thing, to avoid liability the owner or custodian must evidence the fault or negligence of the victim. (Paragraph incorporated by Article 1, Law No. 17.711 B.O. 26/4/1968). If the thing is used against the explicit will or assumed will of the owner or guardian, he or she will not be responsible. (Paragraph introduced by art. 1, Law N° 17.711 B.O. 26/4/1968)]. Intellectual Property Law N. 11.723, September 26, 1933 [A number of the judicial decisions regarding intermediary responsibility are based on Intellectual Property Law 11.723. The following articles have been repetedly applied in decisions dealing with intermediary liability: (1) Article 9: No one has the right to publish, without permission from the authors or copyright owners, a scientific, literary, artistic or musical production that has been noted or copied during the private or public reading, execution, or exposition. (2) Article 13: All of the provisions of this law, except those of Article 57, are equally applicable to scientific, artistic and literary works, published in foreign countries, regardless of the author’s nationality, as long as these authors belong to nations that recognize the right to intellectual poperty. (3) Article 71: Whoever defrauds the intellectual property rights bestowed by this law will be sanctioned with the penalty established in Article 172 of the Penal Code ("imprisonment ranging from 1 month to 6 years.’’) (4) Article 72: Without violating the general provisions of the previous article, special cases of fraud will be considered and penalized, in addition to the confiscation of the illicit edition for: a) Whoever edits, sells, or reproduces any means or instrument, a work yet to be published or published without the author’s authorization or rightful claim. (5) Article 79: Prior to interested parties’ guarantee, judges are able to preventively decree the suspension of the performance of a theatre, cinema, philharmonic or other similar piece. There will be a hold on the denounced works, or product, fitting into the aforementioned categories, and whatever measure must be taken to effectively protect the rights of those guarded by this Law].

BILLS AND LEGISLATIVE PROPOSALSLegislative Proposal, 8070-D-2012, November 15, 2012, Intermediary Services on the Internet. Providers’ Responsibility Guidelines [Proposing that ISPs should not be liable for the transmitted information, unless they originally transmitted it or modified it. Defines caching, hosting and discusses the dissemination of preventive policies to be made known amongst all users using the host]. Legislative Proposal, 2668-D-2012, May 2, 2012, ISPs Responsibility Guideline [Article 1.1 defines Internet Service Providers (ISP) as the technological intermediaries who allow access, connection and interconnection to networks and data on the Internet. This also includes those spaces that save and publish data. Article 2.3 clearly outlines ISPs' liability and states that ISPs that serve as technical intermediaries will not be held responsible for content originating from a third party, even if they are distributed through that ISP. The content, however, cannot be altered by the ISP, which cannot choose the contents' destination].

DECISIONS

Superior CourtsCorte Suprema [Supreme Court], Civil, Rodriguez M. Belen c/Google y Otro s/ daños y perjuicios,  R.522.XLIX., October 29, 2014[copyright, publicity right, privacy, freedom of expression, search engines, Google, Yahoo, linking, notice, take down, filtering thumbnails] [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.] [See also CIS Blog] Corte Suprema [Supreme Court], Civil, Sujarchuk Ariel Bernardo c/Warley Jorge Alberto, S.755, L.XLVI, June 26, 2012 [freedom of speech, freedom of expression, slander, inadmissibility of damages]  [The civil court charged a journalist for describing Ariel Bernardo Sujarchuk, sub secretary at the University of Buenos Aires, as sinister in a published blog. The Supreme Court applied a known doctrine - The Campillay doctrine - determining that a journalist or, a publisher is not liable for the content published if he or she clearly mentioned the source from which the content is taken, while also not having contributed substantially to the content that was published. In the end, the Court revoked the sentence condemning the journalist]. Cámara Nacional de Apelaciones en lo Civil de la Capital Federal [National Civil Court of Appeals, Buenos Aires capital District], Civil, S. M., M. S. c/ Yahoo de Argentina SRL y Otro s/ daños y perjuicios, Expte. Nº 89.007/2006; Cita Online: AR/JUR/XXXXX/2013, November 6, 2013 [copyright, publicity right, privacy, freedom of expression, search engines, linking, blocking order ] [This case is one among numerous civil lawsuits brought against the search engines Google and Yahoo! by different ‘celebrities’ and well‐known public figures for violation of their honor and privacy (see below Rodriguez and Da Cuhna for more background information). In this case, the court 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).] Cámara Nacional de Apelaciones en lo Criminal y Correccional de la Capital Federal [National Court of Criminal Appeals, Buenos Aires capital District], Criminal, “P., L. y otros”, October 28, 2013[copyright, criminal infringement, YouTube, movies] [Confirmed the previous decision regarding a criminal lawsuit against 10 YouTube users accused of publishing a movie on the platform and infringing copyright law, in particular Article 71 of Law 11.723. The final decision concluded that contents that are uploaded on YouTube are not known in advance by the site administrators who, therefore, do not act as "guarantors" of the content and/or neccessarily partecipate in possible illegal actions. According to the ruling, YouTube is an intermediary enjoing a special contition due to its essential character of being a platform to share cultural information globally. The Court concluded that the inherent potential risks of this activity must be balanced with the benefits in terms of the dissemination of cultural content. It also noted that users uploading videos do not infringe Article 71 of Law 11.723 as there was no evidence that there is an economic benefit in favor of the uploader or third parties, generated by trick or deception, and the victims did not experience any direct damage]. Cámara Nacional de Apelaciones en lo Civil de la Capital Federal [National Civil Court of Appeals, Buenos Aires capital District], Civil, María Belén c/ Google Inc. y Otro s/ Daños y Perjuicios, Expte. Nº 99.613/06; Cita Online: AR/JUR/21886/2013, May 13, 2013 [blocking order, linking] [This case is one among other civil lawsuits brought against the search engines Google and Yahoo! by different ‘celebrities’ and well‐known public figures for violation of their honor and privacy (see below Da Cuhna for more background information). The plaintiff, a former model, sought an order requiring Google and Yahoo to: (i) 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; (ii) stop any commercial unauthorized use of her image and name, which allegedly infringed her publicity right and, (iii) pay damages.  (1) 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. (2) 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.  (3) 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 (i) content is produced by a third party; (ii) the claimant notifies the search engine, identifying the alleged infringing content; and (iii) the search engine acts expeditiously to block the content via some “quick and effective filtering method.” (4) 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.] [Appeal to this decision is now pending before the National Supreme Court of Justice. In contrast to the Court of Appeals, the Advocate General, who represents the public interest and submits non-binding opinions prior to a Supreme Court decision, sustained that the "Campillay" and the "real malice" doctines should be applied to this case (see above).] [See also CIS Blog post reporting on the case and the hearing before the Supreme Court]. Cámara Nacional de Apelaciones en lo Criminal y Correccional de la Capital Federal [National Court of Criminal Appeals, Buenos Aires capital District], Criminal, “Incidente de medida cautelar en autos Escobar, Tomas s/ infracción Ley 11723”, Expte. 1681/2012/2, February, 1, 2013[copyright infringement, blocking order, illegal movie streaming] [The website Cuevana, active since 2009, provides streaming links to several movies and TV series. HBO Ole Partners requested to completely block the website for a copyright law violation in connection with the Epitafios TV series. The plaintiff's request, based on Article 13 of the Copyright Law, was rejected by the Appelate Court in February 2013. The Court argued that such a measure seemed excessive and disproportionate. Copyright enforcement, the Court noted, must be balanced with regard to the protection of other fundamental rights of the persons affected by such measures. The ruling also indicates that it has yet to be determined if Cuevana is a website that just provides links or has an index of links leading to content which individual users are responsible for, or there are specific people designated to controlling the content. Additionally, since the identity of the administrators is ignored, the decision indicates that it has not been duly determined who should have been held liable as another reason supporting the inappropriatmess of the decision. Since this is a decision dealing with a preliminary injunction, these determinations are left to the Court deciding on the merits of the case]. Cámara Nacional de Apelaciones en lo Civil de la Capital Federal [National Civil Court of Appeals, Buenos Aires capital District], Civil, C. E. M. Y OTRO C/Mercado Libre S. A. S/ DAÑOS Y PERJUICIOS, Expte. Nº 36440/2010 Cita Online: AA83B9, October 5, 2012[intermediary liability, online market, cunterfeit merchandise] [Individuals sued Mercado Libre after having bought counterfeit tickets on their website. Mercado Libre functions as an online platform which provides a space for sellers to advertise and sell their merchandise and for potential buyers to navigate and shop as desired. Similar to ebay, MercadoLibre serves as a mediator, effectuating limited supervision on individual transactions. Due to the fact that Mercado Libre makes a profit, not only from the space it provides to sellers, but also from each transaction, the National Civil Court of Appeals found it appropriate to apply Argentina’s Consumer Protection Law. Furthermore, Mercado Libre has the responsibility of seeing the transaction through until the buyers receive the merchandise they rightfully purchased. Therefore, Mercado Libre was found guilty alongside with the sellers of the counterfeit merchandise. Mercado Libre appealed the decision, bringing the case before the Supreme Court, which rejected the appeal in November 2013]. Cámara Nacional de Apelaciones en lo Civil de la Capital Federal [National Civil Court of Appeals, Buenos Aires capital District], Civil, Da Cunha, Virginia c. Yahoo de Argentina S.R.L. and Google, Expte. Nº 99.620/2006; Cita Online: AR/JUR/40066/2010, August 10, 2010 [blocking order, linking]  [In Argentina, controversies against the search engines Google and Yahoo! arose in civil lawsuits brought by different ‘celebrities’ and well‐known public figures for violation of their honor and privacy, or for unauthorized use of their names and images on websites with sexual or pornographic content or with offers of sexual services. Da Cunha is just a sample of over a hundred decisions that all apply very similar arguments to very similar fact patterns: a plaintiff who is famous or well-known had his or her image used without authorization by potentially offensive websites operated by third parties unaffiliated with Google and Yahoo. These operators were not named as parties to the lawsuits. Rather, the plaintiffs brought suits against the search engines for facilitating access to the unauthorized content. The National Court of Appeals has applied Article 1109 of the Argentinean Civil Code, analyzing the conduct of the search engine and considering that a search engine could be held liable for third party content when it becomes aware of the infringing content and does not remove it.]  [Appeal to this decision is now pending before the National Supreme Court of Justice. Da Cunha appealed the portion of the Appelate Court's decision stating that the ISP can only be held liable after having received a complaint. The Attorney General of the Nation sustained in an official opinion that the so-called Campillay doctrine should be applied to this case (see above). The Attorney General added that carrying out Da Cunha’s request would be a prior restraint to speech, which is illegal]. Cámara Nacional de Apelaciones en lo Civil de la Capital Federal [National Civil Court of Appeals, Buenos Aires capital District], Civil, Bluvol, Esteban Carlos c / Google Inc. y otros s/ daños y perjuicios , Exp. N° 59.532/2009, Cita Online: AR/JUR/55851/2009, September 29, 2009 [libel and slander, subjective liability] [In the Bluvol case, the plaintiff came to know of a blog on Blogspot, which he had not created, but was posted under his name.  This blog was easily accessible by searching the plainftiff's name on Google. Bluvol argued that the information found on this blog was false and affected his personal and professional life. The court of first instance ruled in Bluvol's favour, requiring the search engines to compensate Bluvol. The judge based his decision on the fact that Google's liability was objective. The Appelate Court sustained that the attributing factor was not objective, since the objective liability of search engines would always lead them to be liable, regardless of their conduct. Moreover, it emphasized that search engines do not create the content. They provide users with tools to access and find it. The Appelate Court applied subjective liability as privided by Article 1109 of the Argentinean Civil Code. The Court analyzed the conduct of search engines and considered that a search engine could be found liable for third party content only if it has ‘‘actual knowledge’’ of the infringing content and fails to remove it. Particularly in the Bluvol case, Google took action only two months after the claim and was therefore found negligent].

Lower CourtsJuzgado Nacional de Primera Instancia en lo Civil [National First Instance Civil Court] No. 64, Civil, CAPIF Camara Argentina de Productores de Fonograms y Otros c/ The Pirate Bay s/Medidas Precautorias, Expte. Nº 67921/2013, March 31, 2014[The Pirate Bay, torrent, linking, copyright, blocking order] [The District Court No. 64 in Buenos Aires issued an injunction to block access to the Pirate Bay website in a case initiated by the Argentine Chamber of Phonographic Producers. This is a so called "autosatisfactive"  injunction that does not need any further determination of the merits of the case. Therefore, the decision is final unless appealed. Later, the Argentine National Communications Commission (NCC) ordered Internet Service Providers to implement the district's court injunction and block access to The Pirate Bay IP numbers and DSN domains in the country within five days.] [See also CIS bolg post] Juzgado Nacional de Primera Instancia en lo Civil [National First Instance Civil Court], Civil, Imagen Satelital S.A. c/Quien Resulta Titular del Sitio Web CUEVANA s/Medidas Precautorias, Expte. Nº 72.792/2011, November 25, 2011[linking, copyright, blocking order] [On November 2011, following a claim from Imagen Satelital S.A., a judge ordered ISPs to block access, for all Internet users, to specific content on the website “Cuevana," including the TV series ‘'Falling Skies’’, ‘’Bric’’, and ‘’26 people to save the world’’. The blocking order was based specifically on Article 79 of the Copyright Law. The National Commission of Communications implemented the judicial decision and ordered the ISPs to block access to the infringing content]. Juzgado Nacional de Primera Instancia en lo Civil [National First Instance Civil Court], Civil, Delegación de Asociaciones Israelitas Argentinas c/ Google Inc, Expte. n° 34023/11 Cita Online La Ley AR/JUR/16489/2011, May 16, 2011[linking, blocking order, defamation] [The Argentine Delegation of Israeli Associations (DAIA) requested that Google removed the links to many websites presenting ostensibly anti-Semitic and discriminatory content. DAIA filed a class action and the judge ordered Google to remove links to almost 80 websites including references to negations of the Holocaust and criticism of Israel. The judge acknowledged that such a broad restriction may be considered prior censorship under Argentine Constitutional Law but argued that this prior restriction is allowed when the content being banned is illegal and offensive].

OTHER RESOURCESAsociación por los Derechos Civiles (ADC), ‘Challenges Facing Freedom of Expression: Intermediary Liability in Argentine Case Law’Freedom House, ‘Freedom on the net 2011 A global assessment of Internet and Digital Media. Argentina'Freedom House, ‘Freedom on the net 2012: A global assessment of Internet and Digital Media. Argentina'Derecho Comparado de la Información (UNAM), Emerging Patterns in Internet Freedom of Expression: Comparative Research Findings in Argentina and Abroad, No.16, 2010Argentina Supreme Court Protects Online Reposting Intermediary Liability Doctrine: Same Wine in New Bottle?

CONTRIBUTORSEduardo BertoniDirector of the Center for Studies on Freedom of Expression and Access to Information (CELE), Palermo University, ArgentinaEmail: eberto2 at palermo.edu[personal page][CELE website] Veronica FerrariResearch Assistant at CELE Argemira FlórezIntern at CELE

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