Da Cunha v. Yahoo de Argentina SRL and Another

Liability of search engines for defamatory search results

Virginia da Cunha objected to the results that came up when people googled her, and brought a case against the search engine Google for damaging her reputation. But how can you guarantee the free circulation of information and ideas on the internet if you block such searches? The courts in Argentina were asked to determine whether search engines are liable for natural search results that are alleged to infringe the claimant’s privacy and reputational interests. The Supreme Court concluded that the search engines did not have any liability for the results that were produced, and the use of filters to block search results would amount to prior censorship. The correct action should have been against the third parties producing the content, without putting freedom of expression at risk.

Facts

The claimant, Virginia da Cunha, is an Argentine model and musician. She claimed damages and sought injunctions against Yahoo Argentina and Google for search results linking her name to several erotic and pornographic websites, which also displayed her photos without permission. Da Cunha argued that the search engines should be held liable for facilitating or contributing to the violation of her rights by unknown third parties (i.e the operators of the pornographic sites).

In July 2009, a first instance court ruled in favor of the claimant. In August 2010, an appeals court reversed that decision, finding that the search engines were not liable under general rules of tort liability, since the claimant failed to show they acted with fault (culpa) in relation to the third-party content at stake. The appeal court specified that the search engines may become liable only once the alleged victim notifies them of the specific links that violate her rights.

The arguments at the Supreme Court of Argentina raised fundamental issues related to the free circulation of information and ideas on the Internet as well as the need to protect individuals from harm resulting from online publications. The claimant argued that the Court of Appeal wrongly prioritized freedom of expression, which should not extend to situations that harm others’ reputation and right to privacy. She claimed that search engines have the potential to amplify the harm because of the large diffusion of listed websites. She argued that search engines should be responsible for the links created between her name and the illicit content, as they could establish filters to remove these links. 

Open Society Justice Initiative Involvement

The Justice Initiative filed a “friend of the court” brief with the Supreme Court of Argentina, providing a comparative overview of the laws and practices of the European Union and the United States, and arguments based on international human rights law.

Arguments

Intermediary liability regimes in the EU and the US. The European Union and the United States have special legal frameworks that limit the criminal and civil liabilities of Internet intermediaries for infringements committed by their users without their involvement. US law provides virtually complete immunity for intermediaries, with a special regime regulating their obligations toward copyright violations by their users. Similarly, EU law provides for a system of conditional immunity (or “safe harbor”), whereby intermediaries are safe as long as they disable illegal content upon obtaining “actual knowledge” of the specific violation. They are under no duty of general monitoring or policing of third-party data.

Search engines are not liable for the content of natural search results. The major jurisdictions covered in the brief do not hold search engines liable for the content of their natural search results, which are the results that directly respond to the user’s query (not related e.g. to the advertising links). Under the case law of the Court of Justice of the European Union, search engines provide essentially a cataloguing service, whereby the results are determined by the user query and the content within those results (“snippets”) is provided by third parties. Similarly, German and Spanish courts have found no liability in cases concerning copyright infringement and defamation by third parties, provided that search engines had no control or actual knowledge of the events. In the UK, courts have found that search engines cannot be considered “publishers”, under common law, of natural search results.  And in the US virtually all attempts to engage intermediary liability for natural search results have failed in the courts. Thus, unless service providers specifically interfere with third-party content or refuse to remove it following a court order, they cannot be held liable.

Intermediaries should normally not be required to remove third-party content unless ordered by the court. This section looked at whether notification by an aggrieved party creates obligations or liabilities for search engines.  Among the members states of the European Union, the key factors considered in this respect are the “actual knowledge” and notification requirements. The actual knowledge test has been construed to mean that the service provider was aware of facts and circumstances on the basis of which a “diligent economic operator should have identified the illegality.” In some member states, including Spain and Portugal, only a court or other public authority may place intermediaries on notice.

Furthermore, international human rights law largely prohibits government measures aimed at preventing dissemination of ideas and information to public; states are also required, under certain circumstances, to prevent private or indirect forms of censorship.  The Inter-American Convention includes particularly strong guarantees against private censorship.  In addition, the extra-judicial removal of user-generated content raises serious questions of due process, since online service providers are left to deal with complex legal issues of online expression, playing the role of global censors. Resolving disputes engaging constitutionally protected rights should therefore be left, as a rule, to the courts.