Friday, July 31, 2009

Ruling against Google and Yahoo in Argentina

A district court in Argentina has ruled that Google and Yahoo have to pay A$ 50,000 in damages for indexing pages where the name of Virginha Da Cunha and her image have been linked to sexual and erotic content. The claimant, an actress, singer and composer (not being in Argentina never heard about her before), sued the search engines alleging the illegal use of her image and claiming A$ 50,000 in material and “moral” damages from each of the named search engine companies.

The judge Virginia Simari, has understood that the search engines are also Internet sites and that their owners decide what contents are included on them. She also considered that “the activities of the defendants facilitate the access to sites that otherwise would be of difficult access and that, in addition, such a facilitation constitutes de node of one of their activities”. “Therefore, it is possible to affirm that the search engines by contributing to the access to the websites are in the best technical conditions to prevent the damages, and it is that profile of the search engines that generates their facilitating activity liability”.

The judge also considered that the fact that the claimant’s professional activity requires her public exhibition in different manners does not legitimate any kind of use of Da Cunha’s image by third parties. She went on explaining that “the standard to measure the damage caused to somebody’s image is conformed by the context where the images in question are presented. In the present case the existence of images of the claimant on websites of sexual, erotic, pornographic content does not leave place to doubt about the impact on the claimant’s image”.

Needless to say that it is expected that both Google and Yahoo will appeal the ruling, but what is peculiar is the way that the judge links seamlessly the damage caused by the offending sites with the search engines that allow people to find them. It is similar to finding the maker of telephotos or zooms liable for the breach of privacy that a paparazzi may commit, or car maker liable for robberies committed by car (or the council that has responsibility for the street where the car is driven to the robbery). But it shows a bigger problem that is starting to arise in jurisdictions like the Argentine, that have a sophisticated legal culture and system and also a fairly litigious nature but judges with no understanding of Internet and new technologies functioning or their peculiar legal principles. Some time ago we discussed the string of domain name disputes judicial decisions where Argentine judges found always in favour of trademark owners when the other party had also a legitimate right to the domain name (as, for example, a family name), and here we have the same situation again. It probably relates to the fact that to be a judge in Argentina you need to be a lawyer and to be a lawyer in Argentina you don’t need to know any thing about ICT law nor you can, as all but one universities don’t have any class on the topic…

1 comment:

Anonymous said...

Argentine Judges understand Internet and argentine law, and under argentine law, search engines are liable. Google and Yahoo! images service violates argentine intelectual property law.
Our congress is no so corrupt as to have agreed to copy the laws of the United States that wanted to impose search engine lobby.