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18 December 2012
The scientific and technical innovations of recent years have had a profound impact on all aspects of society, including the law. The most significant of these is the Internet, which has often rendered existing legal regulations obsolete, presenting situations for which there is no appropriate legal rule or regulation.
In August 2010 a judgment was rendered on this topic by the Court of Appeals in Civil Matters, Division D, in relation to the liability of internet search engines regarding the content of third-party websites (for further information please see "Court of appeals issues important judgment on new technologies"). The complaint - which was sustained by the first instance judge - was filed against search engines Google and Yahoo! Argentina by a singer and model who stated that her image (specifically her photograph) and her name had appeared on several websites with sexual, pornographic and other similar content. Users could access these websites by typing the singer's name into the search fields of Google and Yahoo!.
Since there is no specific legislation in Argentina related to this issue, the court of appeals applied the general rules of the Civil Code and, in particular, those on fault-based liability. Although the first instance judge had sustained the complaint, the court of appeals overturned this decision, holding that the civil liability of the search engines is effective only after the injured party has made a claim and requested that the online content considered harmful be blocked.
However, in an August 31 2012 ruling on a similar matter, the Court of Appeals in Civil Matters, Division J, adopted the opposite approach. It requested that Google and Yahoo! compensate actress Paola Krum for moral damages caused by the fact that her image had appeared in connection with pornographic and sexual websites listed in Google and Yahoo! search results.
The court held that in response to technological advancements, the law must develop tools in order to avoid the harmful impact of such changes. Furthermore, it explained that none of the petitions filed by the plaintiff distorted the right to information - either that of the owners of the various websites which illegally introduced her name or image, or that of the search engines which reproduced the content on their own websites.
In its ruling, the Court of Appeals held that the rules of strict liability apply to these search engines, pursuant to Section 1,113 of the Civil Code. To support this argument, the court held that:
"the more they insist on describing the mechanism on which the defendant's activity is based as a sort of ungovernable robot, alleging that it works automatically without human intervention, the more they seem to recognize that the element governing the service they provide is a highly risky thing. The conclusion derives from defendant's description itself."
As the two above-mentioned court decisions took opposing approaches, it is expected that the Supreme Court - as the final appellate judicial body - will soon set the specific criteria for the liability of search engines for the content of third-party websites.
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