María Belén c/ Google Inc. y Otro s/ Daños y Perjuicios, Expte. Nº 99.613/06

This case is one among other civil lawsuits brought against the search engines Google and Yahoo! by different ‘celebrities’ and well‐known public figures for violation of their honor and privacy (see below Da Cuhna for more background information). The plaintiff, a former model, sought an order requiring Google and Yahoo to: (i) permanently block from the search results the links to webpages displaying prostitution ads and pornography whenever they included her name or images, which allegedly violated her constitutional rights; (ii) stop any commercial unauthorized use of her image and name, which allegedly infringed her publicity right and, (iii) pay damages. 

(1) Specifically, the Court of Appeals first decided that strict liability is not compatible with freedom of expression and rejected the plaintiff’s request to apply strict liability.

(2) Second, Argentina’s doctrine for press media liability - under which the press are not liable for damages unless they fail to cite sources (“Campillay” doctrine) or act with some sort of bad intent (also known as the “real malice” doctrine) - is not necessarily applicable to other modes of expression. 

(3) Third, the Court of Appeals applied the negligence standard to search engines linking to third parties’ content in search results. The Court created a test under which search engines will not be liable, if (i) content is produced by a third party; (ii) the claimant notifies the search engine, identifying the alleged infringing content; and (iii) the search engine acts expeditiously to block the content via some “quick and effective filtering method.”

(4) Finally, the appellate court considered image “thumbnails” displayed in search’s results as “Google’s own content”. These, therefore, fail the first prong of the new negligence test. No fair use defense is available under Argentinean law. Thus, Google must pay damages caused by the thumbnails, including, both for copyright and non-copyright claims, actual and moral damages, but not statutory damages, which are unavailable in the Argentinean legal system.

Appeal to this decision is now pending before the National Supreme Court of Justice. In contrast to the Court of Appeals, the Advocate General, who represents the public interest and submits non-binding opinions prior to a Supreme Court decision, sustained that the "Campillay" and the "real malice" doctines should be applied to this case (see above). See also CIS Blog post reporting on the case and the hearing before the Supreme Court.