Last week I became involved in several discussions about the request for advance evidence presented and granted to Cristina Fernández de Kirchner (CFK) against Google LLC. Perhaps the most interesting thing about this exchange has been the number of theories and arguments, hypotheses about the applicable legal framework, the nature or authorship of the speech, since the truth is that the speech reported is quite common. Personally, as I have argued in other forums, I believe that the case is still one of a public civil servant complaining about alleged libel and slander. This last part, in my opinion, is not interesting at all.
The theoretical analysis of the case, unlike the expression itself, arouses great interest because it is framed in a context in which the economic power of Internet service provider companies, such as Google, has grown enormously. The technology they implement for the indexing and curation of information that they host, order, and display has seen exponential growth and sophistication. The algorithmic systems of many of these companies - such as social networks or search engines - have currently thrown down the argument of the impossibility or lack of practicality of monitoring content, -appropriate for 2014 when the CSJN decided Belen Rodriguez (Rulings 337:1174) -. and they have raised new and important questions. Many posit that if these companies can process / monitor all content on their networks for commercial reasons or to enforce their terms and conditions of service, why not do so to control the circulation of illegal speech? This has been a recurring question in Europe in recent months, where proposals such as the German NetzDG, or the proposal debated in the UK on "Duties of care". What I would highlight in this regard is that the question to be resolved should not be whether permanent monitoring of social networks for law enforcement purposes is possible, but whether it is desirable from the point of view of free speech and due process. Then, in any case, we can debate whether the private monitoring that companies do is desirable or not as well, but that is another conversation.
Considering the complexity of the subject, these lines intend to make a minimum contribution to frame this case from a legal perspective.
- What happened? For a few hours, on May 17, 2020, the GOOGLE knowledge panel - highlights that the search engine generates on some people, individuals or legal entities, of particular notoriety - showed the following information:
In this highlight, under the name of the vice president, where the position or profession generally appears, the legend "Thief of the Argentine Nation" appeared as if that were her position.
- On the questioned expression: The expression would be harmful conduct. And it could well be understood as an opinion or an accusation of fact. In the framework of the Inter-American Human Rights System and in our constitutional framework, distinction matters. The opinions are incontestable and unverifiable and in principle do not generate subsequent responsibilities. The factual assertions can constitute affectations to the rights of third parties, and are susceptible to be contrasted and verified. Therefore, whoever affirms something that is false about a third party, could be subject to subsequent responsibility (never prior, since it constitutes prior censorship) for the damage.
How to determine in this case whether this constitutes an opinion or a statement of fact? In many cases one debates, argues, exchanges opinions and it is the context that determines whether the expression can be characterized as an opinion or a fact. When the opinion refers to public officials in the exercise of their functions, these expressions enjoy even greater protection (I / A Court HR, Kimel vs. Argentina P. 93). Authorship and context in which the expressions are framed are of fundamental importance when characterizing them.
It is clear that the title "Thief of the Nation" is not a professional or academic title, or a position of any kind. This expression could hardly confuse any user regarding its truth or falsity. From this point of view, the expression could also be characterized as satirical expression. This type of humor usually appeals to the dissonance between the context and the literal expression. (See SCILJ, Just a Joke: Defamatory Humor and Incongruity's Promise, 2011). Applied to our case study, the determination of whether in fact this expression belongs to the satirical genre will be closely linked to the determination of authorship. It is clear that Google's knowledge panels are not humorous forums, or content exchange forums. And Google itself defines them as information panels, about natural or legal persons. If we consider that the expression is the authorship of a third party and that the search engine only linked information generated by third parties -in this case Wikipedia-, the “trolleo” (according to Ramiro Álvarez Ugarte) or the vandalism to Wikipedia to appear in Google's featured caption could well be considered a satirical device. Even in protest, a figure that in many cases appears closely linked to humor (See here). If, on the other hand, we consider that Google is the author of this expression, the argument will hardly succeed and it would then be necessary to proceed with the analysis of the other elements that make up civil liability for injuries.
- About the Author: Intuitively when it comes to Google in a lawsuit, one thinks that the factor of attribution of responsibility is that of intermediaries for third-party content. The request for evidence presented by CFK questioned this logic, claiming that in this case it is not attributing responsibility for the links that the search engine makes to other information or sources, but rather considers it the AUTHOR of the harmful expressions.
Google explains on its website that knowledge panels are:
This explains in a link that "a prominent fragment includes the following: information quoted from a third party website; a link to the page; the title of the page; the URL of the page ”(the highlight is their own).
From the definition that Google offers of the Knowledge Panel it is not clear, however, if said panels are limited to reproducing information from third parties and linking it, or if the company algorithmically generates content different from that used as a source, or if it generates a summary of various sites, which would be a middle ground between the first and the second option.
This point is not minor and has generated heated discussions on social networks. Those who disseminate information and ideas of third parties are not responsible for them to the extent that the information is attributed and has not been substantially modified (eg CSJN, Sujarchuck vs Warley, 2013 Rulings: 308:789). In the same sense, the jurisprudence related to the responsibility of intermediaries on the Internet points, with the aforementioned case of Belén Rodríguez.
If these were "summaries", the third option, the characterization can be tilted one way or the other. American courts in any of those cases They argued that even in those instances where there are slight modifications to the content of third parties, they are protected by the intermediary liability law of that country. (See -Roca Labs, Inc. v. Consumer Opinion Corp., 2015 WL 8387974 (M.D. Fla. Dec. 10, 2015- via Eric Goldman.).
If Google were considered the author of the expression, it would be necessary to apply the ordinary analysis of libel and slander with respect to authors, and prove in any case the intent or fault, and the damage. And to determine in this case if the limitation of Google's freedom of expression is necessary and proportional in a democratic society considering that CFK is a public official of the highest rank and her threshold of tolerance for criticism must be higher than that of the rest of people. Following this hypothesis, more complex and interesting questions arise: when can an algorithmic result be said to constitute a new work? When the algorithm generates new, self-authored content, who is responsible? And what is the attribution factor?
In this case, the determination will probably depend on the information that Google provides in response to the request for evidence, and the legal arguments it makes in this regard. CFK's test request includes a point in this regard, when it asks “to detail clearly and precisely how the information is generated”. (Page 8, point i).
- On the applicability of consumer law (law 24.240): The request for early test is framed within the framework of a possible lawsuit for violation of consumer rights. It is established that CFK has been a user of GOOGLE search engines since 2011 to claim that “a company with which it maintains a long-term contractual relationship, betrays the consumer contract entered into and directly attacks its person, tarnishing its name and honor, brutally affecting its image."
Although many of the conversations related to the responsibility of intermediaries for the design and implementation of their terms and conditions of service could (it would be necessary to analyze in detail how, what and when) be framed in law 24.240, the truth is that in this case I think it is misquoted. Marcelo Lopez Alfonsin, UP professor and CABA contentious administrative and tax judge explained that the argument could be anchored in the pro-consumer principle and in Article 42 of the National Constitution, which says:
Article 42 of the National Constitution: “Consumers and users of goods and services have the right, in relation to consumption, to the protection of their health, safety and economic interests; to adequate and truthful information; to freedom of choice, and conditions of fair and dignified treatment. "
The possibility of analyzing this case under consumer law, I believe, depends on how the service provided by Google is defined. To my understanding, Google provides a search service, including ordering and linking of information. The veracity refers to the conditions in which it provides said service and not to the information contained in the links. Removing the case from the orbit of the civil regime of slander and insults to bring it to an orbit of consumer law would lead to an analysis that skips the appropriate legal order to deal with the limits to freedom of expression, and where the standards that we know today would be unenforceable. All this to the detriment, ultimately, of our democracies.
- Hurt: Finally, B. Dvoskin and M. Levy Daniel raised in their Clarín editorial a point that in my opinion is fundamental. What is the damage? In this case, the legend was remedied in a matter of hours in the search engine. The information, probably taken from Wikipedia, a collaborative forum where multiple actors participate in the creation of knowledge and curated by the community itself (which clearly qualifies as an intermediary for the purposes of any liability in this case) was also corrected in that forum in question. hours. In any case, and without prejudice to the theory we apply regarding the responsibility for this expression, according to our law, the damage must be proven.
To conclude, and because I extended myself more than necessary, I insist that this case is more interesting in theory than in practice. The questioned expressions are far from interesting. But the debate that underlies technologies always is.
Image / photo credit @porliniers