Division G of the Civil Court of Appeals warned that search engines may be held liable for lack of compliance with duty of care if they do not avoid making available third party content that has already been deemed as harmful (Civil Court of Appeals, Division G, “D. N., L. A. v. Google Inc.”, Docket No 74,808/2010, decision dated December 16, 2015).
Plaintiff L. A. D. N. brought the case against Google Inc. seeking a compensation for alleged damages to his honor arising from the dissemination through the Google’s search engine results of unfavorable news articles, regarding a lawsuit for corruption of minors in which he was exonerated.
The first instance court applied a strict liability standard, based on the presumed risk involved in the activity performed by search engines, and ordered Google to pay damages in the amount of AR$ 36,620, plus interest and litigation costs.
On appeal, Division G of the Civil Court of Appeals overturned the first instance’s ruling and applied a fault-based liability standard. The Court concluded that the defendant acted diligently by taking down the objected content after receiving judicial notice of the infringement. In so deciding, the Court followed the Supreme Court’s decision in re: “Belén Rodriguez v. Google” under which the possibility of applying a strict liability standard to the search engines’ activity was ruled-out, and determined that search engines may be found liable for their conduct in connection to third party content only after having actual knowledge of its infringing nature.
Pursuant to the Supreme Court’s ruling, actual knowledge results from: (i) a judicial or administrative notice of the URLs where the infringing contents are available, when such infringing nature is not self-evident, or (ii) an extrajudicial notice of such URLs by the affected parties or —depending on the circumstances— by any person, when their infringing nature is self-evident and beyond any reasonable doubt.
In an obiter dictum, the Civil Court of Appeals highlighted that, even though the Civil and Commercial Code does not apply to the case due to the time in which the facts alleged by the plaintiff took place, Google must nonetheless take measures to prevent future unjustified damages according to sections 1710 to 1713 of such Code. In this regard, the Court specified that Google must continue to avoid admitting, disseminating or indexing in its search engine the “blogs and sites” determined in the case and in the preliminary injunctions obtained by L. A. D. N.
This last remark from the Court’s decision has a particular importance for determining the type of measures and cautions that ISPs must take in order to avoid infringing the duty of care set forth in the Civil and Commercial Code.