Claudio Ruiz Gallardo and Juan Carlos Lara Gálvez, Liability of Internet Service Providers (ISPs) and the exercise of freedom of expression in Latin America (2011) Matías Hercovich Montalba, Responsabilidad de los ISP por contenidos ilícitos o infractores de terceros, 2(1) Revista Chilena de Derecho y Tecnología (2013)
In general, this law tackles intermediary non-interference from the perspective of users by adding to the general rules within the General Telecommunications Act (Law Nº 18.168) new rules for internet service providers. Article 24 H states that internet providers (“all natural or legal persons that provide commercial connectivity services between users or its networks and the Internet”): a) shall not block or interfere in any way with the rights of the user to use any content, application or service on the internet; but they may take traffic management measures or block contents upon user requests (and to their cost); b) shall respect device neutrality by not limiting the right to use the internet on any legal device that does not impair use of the net or the quality of service; c) shall offer parental control services...
Together with new copyright exceptions and limitations and the new rules for collecting societies’ tariff procedures, this amendement establishes a regime of limitations on liability for information service providers, as defined in Artice 5 Y. A number of Articles deal specifically with intermediary liability. Article 85 L provides a liability limitation for ISPs as long as they comply with the conditions and requirements of this law, regardless of potential regular civil liability. Article 85 M provides general conditions for limiting liability of transmission, routing, or connection providers that do not modify or select content, or initiate or select the destination of transmissions. Article 85 N provides general conditions for limiting liability among caching service providers that respect access and update...
The plaintiff sought relief from the administrator of a website (www.reclamos.cl) where people can leave anonymous public messages with complaints against companies and services. The plaintiff, the representative of a school, claimed that the site administrator should be held liable for a slanderous accusation posted against her. The plaintiff claimed that the accusations affected her constitutional rights of freedom of teaching and property. A co-plaintiff claimed that his freedom to work was equally affected. The Court of Appeals rejected the claim by recognizing the need to enforce freedom of opinion and freedom of information without prior censorship. Data protection and regulation of journalism were also mentioned by the Court to prevent identification of possible defendants. The Court of Appeals established that...
Plaintiff sought monetary relief from both the internet service provider (Entel) as well as the parent of the person that posted a defamatory content (see below Entel I). The Court recognized the lack of rules for internet content. General damages rules are to be applied. However, the action was rejected. The service provider is not liable under general rules as it could not control the uploaded content. Additionally, the natural person was held not liable as the alleged infringer was already of age.
Stating that liability for defamatory content - a false offering of sexual services by the minor daughter of plaintiff - may be exclusively casted upon the provider of the content, not the manager of the website or the provider of connection. This decision recognizes the lack of rules for internet content, but it also recognizes that only ex post control over content is possible or to be expected. Upon noticing “evidently” offensive content, providers should take measures to prevent further harm, but they are not liable for damages before that moment. The decision establishes, but does not explain, the principle of “freedom of the information that circulates on the internet”.