Deputy Federico Pinedo filed a draft bill addressing ISPs’ liability with the House of Representatives.
There is no specific legislation in Argentina addressing Internet Service Providers (ISPs) liability in connection with third-party generated content.
So far, when considering cases involving ISPs’ liability the courts have either applied –under general Civil Law damages principles-, the standards of fault based on Sections 509 and 1109 of the Civil Code or strict liability based in Section 1113 of the same code.
Although there are pending cases to be heard by the Supreme Court, no decision on the merits has been issued yet.
Within this scenario, on March 2013 Deputy Federico Pinedo filed a draft bill addressing ISPs’ liability with the House of Representatives whose main provisions are as follows.
ISPs are defined as technological intermediaries allowing, among others, access, connection or interconnection to the Internet as well as the transmission, hosting, posting, direction and search of content and information. The definition of ISPs includes but is not limited to Internet access providers, cache service providers, hosting service providers and search engines.
At the same time, content is defined as any information, file, data or message of any nature to which access is enabled through telematics nets.
Particularly in connection with ISPs’ responsibility for third-party generated content, in general they will not be held liable unless the ISP has actual knowledge that such content is illegal under the laws of Argentina or that it infringes upon third parties’ rights, and that the ISP fails to remove or block access to it. In that regard, the draft bill clarifies that ISPs will have actual responsibility once they are formally served with notice of a court decision demanding them to remove or block access to certain content.
Moreover, in the case of ISPs merely providing a technical intermediation or in the case of ISPs providing Internet access they will not be held liable for any content as long as they do not create or alter the content and do not select the addressees.
At the same time, search engines operating under the ccTLD .AR should include in their websites an email address with the aim of enabling consumers to channel their claims through it.
The draft bill clearly states that nothing in it should be interpreted as a limitation for the ISPs to self-regulate their activities in connection with the notification, removal, suspension, or blocking of any content suspicious of infringing, as long as it does not imply a lower level of protection to that of the draft bill.
Finally, it provides for the possibility of any legitimate party to institute court action before the judge of its domicile and request the court to issue a preliminary measure ordering an ISP to remove or block any infringing content. To that end, the applicant must provide a prima facie showing of his or her rights. Courts are authorized to issue the preliminary measures without first hearing the affected party.
If this draft bill is passed, ISPs’ responsibility for third-party generated content will be considered under the standards of fault instead of strict liability, in which case ISPs will only be held liable after they have actual knowledge that such content is infringing and they fail to remove or block access to it.
See for example Federal Court of Appeals in Civil and Commercial Matters, Room I, in re: Prete v. Yahoo de Argentina S.R.L – seeking damages, September 2012.
See for example National Court of Appeals in Civil Matters, Room J, in re : Krum v. Yahoo de Argentina S.R.L – seeking damages, August 2012.