The Argentine Court of Appeals in Commercial Matters analyzed the liability of e-commerce platforms (Argentine Court of Appeals in Commercial Matters, Division D, “Kosten, Esteban v. Mercado Libre S.R.L.”, March 22, 2018).

The facts of the case are the following. Mr. Kosten contacted the seller of a car through an advertisement published in Mercado Libre (www.mercadolibre.com.ar). When he failed to receive the car after paid for it, he filed a court action against the platform. In response, Mercado Libre argued that it did not meet the requirements to be the plaintiff in the case, on the basis that it merely acted as a classified advertisements platform.

The court of first instance decided in favor of Mercado Libre. This decision was upheld unanimously by the Court of Appeals.

In its decision, the Court of Appeals stated that there is an exemption from liability in cases where an e-commerce platform has not played an active role that would allow it to acquire knowledge or control of the data it stores. That is, when it has only served as a channel or forum. It held that this is the logical consequence of the inexistence of a general obligation to monitor content, referring to the Argentine Supreme Court’s ruling in the “Belén Rodríguez v. Google” case (further information on this case here).

On the other hand, the Court of Appeals also pointed out that there is no exemption from liability when the platform played an active role, for example by promoting or enhancing the presentation of offers, and cited rulings issued by the Federal Court of Appeals in Civil and Commercial Matters in “Nike International Ltd. v. DeRemate.com de Argentina” and “Nike International Ltd.  v. Compañía de Medios Digitales CMD SA” (further information on these cases here). In addition, the Court of Appeals established that the existence of secondary activities, such as payment methods, ID verification mechanisms and ratings, did not in itself mean that the platform could not claim the application of the “mere intermediary” exemption in connection with hosting services.

In examining the specific circumstances of the case, the Court of Appeals noted that Mercado Libre acted as a mere host of information, emphasizing that accessing the classified section does not require registration and that seller information is public. It also took into account that Mercado Libre did not enhance the presentation of the offer, provide payment services or charge a commission. Additionally, it considered that the Terms and Conditions of the website provided true, clear and detailed information to consumers.

Lastly, the Court of Appeals mentioned that Mr. Kosten acted carelessly, since he failed to check the physical and legal condition of the car and to take into account that the circumstances of the offer made it suspicious.

This new ruling is important because it provides further guidelines for e-commerce platforms which, in some cases and depending on the circumstances, could be applicable to other Internet Service Providers.