New Supreme Court ruling on search engine liability
On a split decision the Argentine Supreme Court of Justice (“SC”) recently ruled a new case on civil liability of Internet search engines. Following the criteria of the leading cases “Rodríguez” and “Gimbutas”, the SC understood that search engines are not liable for third-party generated content since it constitutes the legitimate exercise of the right to freedom of speech and publication of information. The court applied again the principles of fault-based liability rather than strict liability standards.
In the case “Mazza, Valeria Raquel v. Yahoo SRL Argentina and other” the plaintiff Valeria Mazza instituted a court action against Yahoo SRL Argentina (“Yahoo”) and Google Inc. (“Google”) invoking that her personal rights such as honor, dignity, privacy, reputation and publicity right were violated. On one hand she claimed the immediate cease of what she considered it was an illegal use of her image by the search engines and the removal of the results associated to her name from specific websites; on the other hand, she requested also the compensation for the damages that this has caused. She further explained that when including her name in the search field of Google (www.google.com.ar) and Yahoo (www.yahoo.com.ar), websites of sexual, pornographic, erotic or sex were shown as results, all of which were incompatible with Mazza’s spiritual feelings, thinking and line of conduct. Moreover, the plaintiff argued that the images search results constituted an unauthorized use of her image since pictures with her name were associated with the aforementioned pornography and sex offer website.
First Instance’s judgement.
The First Instance Judge rejected Valeria Mazza’s complaint. In his decision the Judge invoked the SC ruling in re “Rodríguez, María Belén v. Google Inc.” attributing fault-based liability to Internet search engines and, on that basis, considered that the damage was not caused by the defendants’ negligence. In turn, following the aforementioned SC’s case law, the District Court declared that thumbnails work just as a link to third party content and that the association of images to the searched terms should not be framed within publicity right as ruled by section 31 of Law 11,723.
Court of Appeals’ judgement.
The Court of Appeals in Commercial matters overturned the First Instance Court’s ruling and admitted the plaintiff’s claim for damages. In this regard, Google and Yahoo were ordered to pay AR$ 800,000 and 450,000, respectively as compensation for material and non-material damages.
The Court of Appeals ruled that Google shall be found liable even considering the fault-based liability principles since they failed to take corrective measures once it was served notice of the precautionary measures granted in favor of the plaintiff ordering the takedown of the infringing content. It also concluded that both defendants were liable for violating the plaintiff’s rights by publishing her image without her consent. One of the judges considered that the liability of search engines should not be fault-based but ruled by strict liability standards.
The SC reversed the Court of Appeals’ decision and dismissed Valeria Mazza’s claim. The majority of the court members followed the considerations set by the SC in re “Rodríguez” and “Gimbutas” by referring to the terms of such decisions. In those rulings, the court considered that the activity of Internet search engines is protected by the right to freedom of speech since they are mere intermediaries that just display third party’s content uploaded on websites. The right to freedom of speech involves the right to communicate ideas, opinions, and facts that are spread through the Internet. Liability of the search engines arises only when they fail to act diligently which means that they have actual knowledge of the infringing nature of the third party’s content and fail to take corrective steps thereafter. To get actual knowledge a due notification is required, which will take place by means of a judicial or administrative order except in certain cases where the damage is blatant.
In re Rodriguez and Gimbutas the SC understood that the mere activity of indexing the contents published by third parties and offered to search engine services users fall under the right to freedom of speech and constitute a legal activity. Unlawful behavior takes place when the search engine has effective knowledge of the harmful event and despite this it does not delete or disable the proper link. According to the SC in Valeria Mazza’s case, both defendants blocked the search results once they were served notice of the relevant court order so they shall not be deemed liable.
The divergence of opinions among the SC’s members relates to the reproduction and/ or use of the plaintiff’s image by the search engines through thumbnails. While the majority considered that no violation was committed, judges Maqueda and Lorenzetti emphasized that the publicity right includes the right holder’s will to decide whether or not to allow a picture to be taken or disclosed. They argued that the right to privacy means that no one can interfere with a person’s private life or violate aspects of his/her activity that are not intended to be disclosed without obtaining the relevant consent. In this sense, these judges considered that plaintiff´s pictures were used without the explicit or implicit consent which constituted an unlawful intrusion into the personal life that shall be compensated. Consequently, they proposed to accept the Extraordinary Relief and confirm the Court of Appeals’ decision.
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