Corte Suprema [Supreme Court], Gimbutas, Carolina Valeria c/ Google Inc. s/daños y perjuicios

This landmark case addressed the liability of search engines for linking in search results to third-party content that violates fundamental rights or infringes copyright. Because Argentina had no intermediary liability legislation at the time, the Supreme Court reviewed domestic and international law, and reasoned from tort principles and constitutional or human rights law. Its decision was largely favorable to search engines. The Court (1) repudiated a strict liability standard on the basis of the threat it would pose to free expression rights; (2) held that search engines could not be liable for unlawful content upon notification unless a public authority had adjudicated the material as unlawful, with exceptions for cases of "gross and manifest harm"; (3) rejected any filtering obligation to prevent infringing links...

The new Argentine Civil and Commercial Code does not have any specific legislation regarding Internet Service Providers’ (ISP) liability. Article 1.109 of the revoked Argentine Civil Code is still used as a reference for the negligence standard of liability based on actual knowledge under “Rodriguez”. The said article does not have an exact substitute. However, the negligence standard can be found in Article 1721 and Article 1724. Moreover, Article 53 has been applied in decisions dealing with search engines’ liability with respect to thumbnail linking. Article 53. Right of publicity. In order to record or reproduce a person’s image or voice, in any way, such person’s consent is necessary, except in the following cases: a) where the person participates in public acts; b) where there is a higher scientific, cultural or...

A number of the judicial decisions regarding intermediary responsibility are based on Intellectual Property Law 11.723. The following articles have been repetedly applied in decisions dealing with intermediary liability: (1) Article 9: No one has the right to publish, without permission from the authors or copyright owners, a scientific, literary, artistic or musical production that has been noted or copied during the private or public reading, execution, or exposition. (2) Article 13: All of the provisions of this law, except those of Article 57, are equally applicable to scientific, artistic and literary works, published in foreign countries, regardless of the author’s nationality, as long as these authors belong to nations that recognize the right to intellectual poperty. (3) Article 71: Whoever defrauds the...