Jurisprudence as a network that grows
A network analysis on the Argentine jurisprudence of intermediary liability
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What is jurisprudence?
In general, in the world of law, this is what we call we call a series of cases that address similar problems and solve them in similar ways. Jurisprudence is dynamic: it emerges, evolves, goes through moments of tension and calm. In a hierarchically structured social field under formal power relations, such as the legal field, some superior actors exercise a certain level of control over other inferior ones, even though these relationships are usually complex and their dynamics are far from linear. In this report—-an offshoot of CELE research currently undergoing peer review—-we show the evolution of a jurisprudenceespecially relevant for freedom of expression on the Internet: that of the liability of intermediaries in Argentina.
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The jurisprudence on the liability of intermediaries arises in Argentina as a consequence of a line of litigation that emerged towards the mid-2000s. These are cases that generally follow a similar pattern: famous people, usually women, sue Yahoo and Google due to the search results associated with their names. They claim that they are unfairly linked to sites that promote pornography or prostitution and that their images are used by search engines without their consent.
One of the first cases involved the model Sofía Zámolo.
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This jurisprudence was not systematically analyzed. Many in the Argentine legal community commented on what were considered the most relevant rulings, as well as on the early decisions where the claims seemed novel and without a clear legal solution. But there was neither a complete revision of that jurisprudence, nor a consolidated repository. We had to build it. The result was a database with over 400 decisions, approximately half of which were analyzed and the citation patterns of those cases were coded.
Sample of the consolidated database of cases, with their citations.
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We were mainly interested in discovering how Argentine law had reached certain conclusions regarding the legal questions raised by this type of claim. What alternative solutions did it explore? Which were the dominant ones and why? Who were the different judicial actors that participated in the disagreements that arose? We analyzed these and other properly legal questions in the work that originated this report. But here we want to underline a central part of our concerns: the temporal evolution of the issue and the importance of the judicial intervention of the Supreme Court in the matter. The first issue has to do with understanding the law as a dynamic endeavor, allowing various solutions. The second has to do with a mechanism for the creation of law and the "solution" of that diversity: the authoritative intervention of higher courts in the face of divergences from lower courts.
The initial moments of the jurisprudence of intermediaries.
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The case law before the case Belén Rodriguez
(Interactive)
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These cases showed substantial doctrinal divergences. Thus, in Krum(XNUMX), for example, Chamber J of the CNAC [National Commercial Court of Appeals] resolved two issues in such a way that could not be sustained over time: it decided to question the use of thumbnails search engines for the image search service and was inclined to consider that these companies were strictly responsible for the information they provided.
Krum case and strict liability
Krum and the use of thumbails
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The contrast with the case Prete(XNUMX) of the Federal Court, in both issues, is significant.
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Central aspects of Belén Rodriguez
On the one hand, it reaffirms principles that had already emerged in the lower courts, regarding the effects that unrestricted civil liability could have on the flow of information on the Internet. It rejects the notion that search engines have an obligation to monitor content.
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But the Supreme Court admits a limited set of cases in which search engines could be held liable: when they have effective knowledge about the illegality of content and do not act diligently. A key question is how to achieve this “effective knowledge.” The Supreme Court considers that in cases of manifest illegality, this notification can be private. Otherwise, when content is not obviously illegal, the notification must be made by a judge.
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The Supreme Court also rejects that the use of thumbnails by search engines violates the rights of people whose images are indexed, in this modality, by search engines.
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Finally, the SCJN rejected the generic remedies that, in previous years, had been the first solution of jurisprudence, both national and federal. These remedies forced search engines to eliminate any link that resulted in the violation of the rights of the plaintiff, generic orders that were difficult or impossible to comply with without an unfeasible monitoring task. For the SCJN, these types of remedies constitute nothing more and nothing less than a form of prior censorship.
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The significance of Belén Rodriguezas a precedent is confirmed by quantitative data from social media analysis (SMA) that serves as the basis for these visualizations. When we submit the analysis of this network of jurisprudence to an authority score analysis (the most cited cases) following Jon Kleinberg's algorithm (XNUMX), that centrality clearly emerges.
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Belén Rodriguez is not the last intervention of the Court. On Gimbutas(XNUMX), the court ratified its jurisprudence, and especially its criteria on the use of thumbnails. But that intervention does not modify the citation pattern observed: Rodriguez maintains its centrality over time.
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What does Belén Rodriguez?
- There are no ensuing cases invoking an objective attribution factor.
- There are some later cases of thumbnails (Tafet) and the identification of URLs for blocking (Albertarium y Rashi) but those are the result of previous cases, in which the claims of the trial lawyers had not been "checked" by the precedent of the Supreme Court.
- One issue that remained open was that of remedies. In a significant number of cases, generic remedies were insisted upon, but these were, curiously, first-instance cases. In at least some of these cases, these criteria were set aside by the reviewing chambers.
The Van Lacke case Boullon, Gisella.
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What is not solved by Belén Rodriguez?
It did not limit the trend of litigation, but rather modified it. Many subsequent cases began as lawsuits to block or deindex certain content for being manifestly illegal, requests that the companies rejected and were—-consequently—-
Browse the Argentine jurisprudence of intermediary liability
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Where are we going?
The jurisprudence of liability of intermediaries on the Internet remains open.
CELE recently filed an amicus curiae brief in the Denegri case, in which a “right to be forgotten” claim will allow the court to uphold or modify its Belén Rodríguez precedent.
Will the Supreme Court continue to control, however imperfectly, how we resolve these types of cases?
We do not know. But, undoubtedly, this trend of litigation will continue to grow, and so will the jurisprudence that governs it.
Natalia Denegri's claim, in the CSJN.