originally published by MLRC, Media Law Letter, November 2014.
Valuable Precedent for Freedom of Expression on the Internet
In an important ruling, the Supreme Court of Argentina recently issued a decision on the liability of search engines for linking to defamatory and/or unlawful websites. María Belén Rodriguez c. Google s/daños y perjuicios, Case No. 99.613/06 (Oct. 28, 2015).
The court rejected the theory of strict liability for search engine results. Instead the search engine must have actual knowledge of the defamatory or infringing content based on notice from a judicial official, except in cases involving clearly illegal content such as child pornography.
In 2006, Argentinian model María Belén Rodriguez sued Google claiming that searches of her name returned links to and thumbnail photographs from pornographic websites. She alleged the search results falsely portrayed her as a prostitute and the thumbnails used her image without permission. A lower court ordered Google to pay damages of approximately $6,000 U.S. on the basis that Google was responsible for the harm caused by the third party sites which were not parties to the case.
Although the damages were modest, hundreds of similar lawsuits are pending in Argentina against Google and other search engines seeking to hold them liable for search results and content on third party websites.
I wrote a “friend of the court” amicus brief to the Supreme Court addressing the issue of intermediary liability of search engines and referring the Court to international standards in this area.
The Court held that a strict liability regime for search engines would be contrary to freedom of expression. And search engines have no legal obligation to monitor the content they transmit. The Court extended this analysis to the thumbnails (the miniature images in online searches). Those would also be the responsibility of whoever produced the images and the content, and not the responsibility of the intermediary that simply indexes them.
The search engine is only responsible when it has “actual knowledge” of unlawful content. But such knowledge should be based on notice from a competent authority (a judge or tribunal, for example), and not merely upon a user’s complaint to the search engine. The Court noted that search engines do not have to act as judges to determine whether content is defamatory.
However the search engine may be held responsible in cases in which the content is “explicitly unlawful,” a standard which, in the Court’s judgment, would be useful for clear cases like child pornography, and a list of other examples, including hate speech.
More clarification will be needed to determine whether and how notice applies in these situations, however, this does not detract from the Supreme Court’s approach in resolving the core issue, particularly the Court’s respect for freedom of expression.
In addition, the Court noted that preliminary measures to remove content should be limited to exceptional cases, given that restrictions and limitations on freedom of expression carry a strong presumption of unconstitutionality.
The case was resolved by a majority, not unanimously. Judges Ricardo Lorenzetti and Juan Carlos Maqueda dissented in part and their opinions will need to be analyzed in greater depth. In their dissent, for example, they would have held Google responsible for the thumbnails based on violation of rights to image. They also contemplated the possibility of preventive court measures to remove or block links that are clearly detrimental to personal rights.
In conclusion, while some of the issues covered in this ruling will need clarification in the future – like the standard on actual knowledge – in general the decision is, without a doubt, a valuable precedent for freedom of expression on the Internet.