Wednesday, November 26, 2014

Daniel Ivo Odon on Privacy Rights and Search Engine Liability

Daniel Ivo Odon, my SJD student at Penn State Law and the winner of the inaugural Mauricio Correa Human Rights Award from the Brazilian Bar Association, has written about the recent Argentine Supreme Court decision in which the court rejected the effort by a prominent model,  Maria Belén Rodriguez, to hold search engines, including Google, liable for permitting the linking of her name and modeling photos to pornographic websites.  Though she had won in the inferior courts of Argentine (see HERE) the Argentine Supreme Court rejected her claim. 

This litigation is one of many that have sought to impose some sort of obligaiton on search engines to better police their spaces.  As the New Yirk Tomes noted in 2010:

Google and Yahoo won an appeal of a lawsuit brought by an Argentine entertainer, Virginia Da Cunha. Her name and some photos showed up in search results connected with sex sites. The appeals court ruled Google and Yahoo weren’t liable for defamation for third-party content.

The victory was a welcome one, but the companies face more than a hundred similar suits in Argentina. But while Internet companies struggle in authoritarian countries over what’s in search results, legal experts say that the Argentine cases are a an example of why developing countries need clear laws governing Internet content. Most of Latin America lacks legislation comparable to the United States’ Safe Harbors act that protects technology companies from liability over third-party content.. . . .
 Lawyers think it is unlikely that something similar will even be debated in Argentina. Although Google and Yahoo Argentina won the Da Cunha case and may have the momentum for change, they face many more battles from unhappy private citizens. Eric Goldman, director of the High Tech Law Center at Santa Clara University in the United States, questions that approach to regulating the Internet. “These third parties want the right to veto search results they don’t like, but it’s doubtful they will exercise that veto power in a manner that improves the information economy.” (Vinod Sreeharsha, No Safe Harbors in Argentina. The New York Times, Aug. 20, 2010)
 And indeed, this past month the Argentine Supreme Court determined that  search engines are not legally responsible for any content they index, or the consequences of that indexing. (Google victory in Argentina: search engines are not responsible for content they index, Merco Press, October 31, 2014) ("According to the justices, Google and other search engines can be taken to court if users have filed requests to remove links and have refused to comply. We praise this decision. It’s a great day for the Internet and freedom of expression,” said María Baudino, the head of Google’s Legal Department in Latin America.").  

According to this report, Ms. Rodriguez's lawyers intend to take the case next to the Inter-American Court of Human Rights. It is possible that the Inter-American Court will use the opportunity to reshape the scope of the legal obligations of search and indexing companies, especially in the context of changes in European law.

Mr. Odon's remarks are set out below.

María Rodríguez and the Obligations of COntent Providers
Daniel Ivo Odon

Last week, the Argentinian Supreme Court held the case R. 522. XLIX, in which María Belén Rodríguez has filed a lawsuit against Google, Inc. Rodríguez is a prestigious actress whose non-authorized pictures were being used for commercial purpose by Google, who tagged them to erotic and porn websites. Her claim, thereafter, was to remove the pictures and to seek an indemnification for their exposure.

The conflict brought before the Court is the classic and overseas duel between freedom of expression and information and the right to privacy, where plaintiff emphasizes the erosion of honor and reputation. As well conceptualized by the Court, according to the American Convention on Human Rights (ACHR), Article 13, the transmission of ideas, facts and opinions on the Internet are embedded in the liberty premises. This comprehension surpasses the international arena and comes to the domestic system of law as a constitutional guarantee. The diffusion of information through the Internet is properly protected just like the press media (UN A/HRC/20/L.13. June 29, 2012, §1), because the Internet is deemed necessary to assure some account of other rights which come within, such as education and free association (UN A/66/290. August 10, 2011, §61).

Before reaching the Argentinian Supreme Court, Google had had to pay US$100,000 in indemnification. However, basing its rationale in international and comparative law, the Court overruled it. Its hindsight has conveyed that the Chilean (law 17.336), Brazilian (law 12.965/2014), Spanish (law 34/2002) and US (Communications Decency Act) legislations generally establish that all service providers have no obligation to spot all data transmitted, storage or related on their research tool, the Google Search. In this vein, the Organization of American States (OAS) establishes that the core of net neutrality is built upon the legal safeguards on irresponsibility of providers on harms that go beyond general surveillance obligation – as well as it avoids State interferences (Rapporteur on the Freedom of Expression and Internet, May/2011, §§27-32, 141). The correction of the wrong information, otherwise, is still the measure to be taken; it is rooted in the service providers’ duty to rectification, in order to exclude other types of liability, which they would incur in case of malicious intent when publishing the detrimental material (Rapporteur on the Freedom of Expression and Internet, May/2011, §72)

The Court’s reasoning relies on the actor’s responsibility who unlawfully disregard Ms. Rodríguez’s personal rights, rather than towards search tool’s provider. The decision entails that imposing responsibility of Ms. Rodríguez’ privacy violation over Google Search, who did not make inappropriate use of her image would be as weird as punishing a library whose catalogs and files possess books which contents are illegal. If it stands, several libraries would close their doors just as much as the internet service providers would if they are responsible for privacies diminished by others agency – comparison borrowed by the Argentinian Court from England’s Royal Court of Justice, in case Metropolitan International Schools Ltd v. Google Inc., [2009] EWHC 1765 (QB).

Nowadays, the Internet is one of the most prestigious channels of manifestation of ideas, opinions, thoughts and information. According to UN General Assembly, the freedom of expression through the Internet is subjected to impermissible restrictions and accountable only for intentional harms, due to its foundational relevance for every free and democratic society (UN A/66/290, August 10, 2011, Chapter III.B), likewise held the Argentinian Supreme Court.

Moreover, as duly recalled by the Court, the Article 13.2 of the ACHR is precise when asserting that the freedom of expression cannot be subjected to previous censorship but further responsibility crafted in law and necessary to assure the people’s right of reputation. It also brings in the rationale the constitutional doctrine of US Supreme Court toward its paradigmatic authority in interpreting democracy and civil liberties, citing Freedman v. Maryland, 380 U.S. 51 (1965) and others.

To overrule the indemnification set by the Judicial Court, following the Argentinian civil law, the Supreme Court came across with comparative law – such as Chilean, Brazilian, Spanish and US Law – and international law – in compliance with Article 27 of the Vienna Convention of 1969 – to reach the rationale which fostered the freedom of information over the right of private life for internet service providers, like Google, Inc. Thus, in addition to the Argentinian Constitution, the Court chiefly held the case relied on ACHR and OAS and UN documents, underpinning a broader sense of constitutional matter settled also by international law standards.

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