Jurisprudence as a network that grows
In XNUMX, CELE carried out an investigation into civil jurisprudence regarding the liability of intermediaries. We are interested in the subject since the legal regime of liability of Internet companies for content published by third parties exists—in part—as a result of a series of lawsuits that were resolved in court. The limited no liability rule that the Supreme Court created in the Bethlehem Rodriguezcase of XNUMX is the only option available: although there were legislative projects, they did not prosper. Therefore, in Argentina—unlike many other countries—the rules that regulate this type of conflict and controversy were created by the judges.
The project required considerable research efforts. There are many ways to access court cases in Argentina. The most important decisions are, in general, reported in legal magazines: second instance sentences or first instance cases that are perceived by the editors as very novel or interesting. But thanks to the Internet, access to information has increased: in addition to traditional legal journals, numerous websites, blogs and repositories are also part of the legal information ecosystem.
In the absence of a single or centralized repository, it was important to proceed with care. We devised a research methodology: starting from the most relevant and well-known cases of the Supreme Court and the relevant appellate chambers — in our case, the National Civil Court of Appeals and the Federal Civil and Commercial Court of Appeals — we tracked down the cases cited by those rulings, we searched for them and subjected them to the same analysis. We were able to identify XNUMX rulings within the universe of cases of interest, and we analyzed XNUMX sentences. We coded citation patterns and subjected that database to social media analysis, in line with comparative law research that used the same methodology to identify the "most important" cases of a court or certain lines of jurisprudence (see, e.g., this pioneering work).
This analysis allowed us to reach certain interesting findings and verify some characteristics of the jurisprudence, such as its distinctive federalnature and the quite notable divide between the citation patterns of the federal justice and the national civil justice ( spoiler: federal justice is more egocentric, focused on itself and its own precedents; civil justice shows that trait but resorts a lot to the Supreme Court to base its decisions). We also verified the central role of the Bethlehem Rodriguezcase in jurisprudence.
One of the main dimensions of this research has to do with the evolution of jurisprudenceover time, which has a period of "birth," another of development intersected by various substantive disagreements, and another of consolidation of a possible solution. To tell that story, we put together a microsite that tells that story, where we can see jurisprudence as a “growing network,” in different directions, ordered — at some point — by the intervention of higher courts, especially the Supreme Court. These findings, which we analyzed in an article that is currently under peer review, are fundamental for the substantive aspects of the legal disputes involved in these cases, but also to understand the possibilities, scope, and limits of the cassationfunction of the Supreme Court, and also to understand the sources of resistance to judicial precedents that can be generated in lower courts.
This evolution over time is crucial for different reasons, but we wanted to highlight one: a notable aspect of intermediary liability jurisprudence is its continuity. The trends of litigation that originated this series of cases continue and adapt to the solutions offered by judges. Thus, one of the latest developments has to do with the emergence of claims based on the so-called right to be forgotten, on which the Supreme Court must rule soon in the Denegricase, where the plaintiff demanded that search engines be held responsible for lawfulcontent produced by third parties. (CELE presented a letter ofamicus curiae asking the court to deny the request). Therefore, the future foresees permanent interventions of the courts to resolve these novel claims, at least until Congress legislates on the intermediary liability regime as—we believe—it should.
