Content Regulation / Censorship, Defamation / Reputation, Political Expression
The Case of Sarawak Report and Malaysia Insider
Closed Expands Expression
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The Supreme Court of Justice ruled that online search engine service providers can be negligently liable for contents that adversely affect one’s reputation or right to privacy. An Argentinian model brought a civil case against Google and Yahoo, seeking monetary damages for harms she suffered as a result of associating her name and images to websites having sexual and pornographic contents. She also sought a permanent injunction to block and remove all thumbnails using her images from the search results. On the basis of international human rights law, the court noted that search engine operators played a pivotal role in promoting the freedom of its users to seek and receive information online. However, the Court stressed that search engines bore the responsibility for providing access to unauthorized or illegal content. According to the Court, search engine operators are strictly liable for providing access to materials that clearly pose danger or harm to the public, such as child pornography or contents that facilitate or incite crimes. They can further be negligently liable for contents that adversely affect one’s reputation or right to privacy.
An Argentinian model brought a civil case against Google and Yahoo, seeking monetary damages for harms she suffered as a result of associating her name and images to websites having sexual and pornographic contents. She also sought a permanent injunction to block and remove all thumbnails using her images from the search results.
Initially, The court of first instance awarded monetary damages in the amount of Arg$ 100,000 against Google, and Arg$20,000 against Yahoo, and ordered the companies to block and remove all search results associating her images with pornographic websites.
On appeal, the court of second instance partially overturned the decision. It annuled the judgment against Yahoo and reduced the monetary damages to the total sum of Arg$ 50,000 against Google for its use of the images in the thumbnails without authorization.
Subsequently, both parties appealed the case to Argentina’s National Supreme Court of Justice.
The Supreme Court of Justice first ruled that online communications are protected under relevant national laws of Argentina. Pursuant to Article 14 of the Constitution, “All inhabitants of the nation enjoy [the right] in publishing their ideas through press without censorship.” Article 32 prohibits the Federal Congress from enacting “laws that restrict the freedom of press or that substantial federal jurisdiction over it.” Also, the Court referred to Article 1 of the Federal Law No. 26.032 that recognizes the right to convey ideas, facts, and opinions disseminated through internet.
The Court also made reference to international human rights law decisions recognizing the pivotal role of internet search engine service providers in promoting the freedom of its users to seek and receive information made available on internet. However, the Court noted that search engines bear the responsibility for providing access to unauthorized or illegal contents depending on the nature of published information.
According to Court, search engine companies are strictly liable for providing access to materials that clearly pose danger or harm to the public, such as child pornography or contents that facilitate or incite crimes. In comparison, they are negligently liable for contents that adversely affect one’s reputation or right to privacy. To recover, the affected individual must show that he or she properly informed the search engines but they failed to act with due diligence in blocking access or removing the contents.
Accordingly, the Court did not find Google and Yahoo strictly liable because the images at issue only adversely affected the plaintiff’s reputation, rather posing harm to the public, and that she could request the images to be removed. The Court also overturned court of first instance’s judgment ordering Google to monitor specific illegal contents and filter them from its indexes. It ruled that such order would amount to unjustified censorship.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision extends the freedom of expression to online search engine service providers and limits their liability in cases in which they provide access to information that adversely affect one’s reputation or right to privacy.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Under Article 13 of the American Convention on Human Rights, “The exercise of the right to [freedom of expression] shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: a. respect for the rights or reputations of others; or b. the protection of national security, public order, or public health or morals.”
The Special Rapporteur of Organization of American States on freedom of expression holds that Article 13 of the American Convention on Human Rights “fully to communications, ideas and information distributed through the Internet.”
The Court of Justice for the European Union held that internet search engine service providers equally enjoy the freedom “to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
Articles 1109, 1113
“The private actions of men that in no way offend public order or morality, nor injure a third party, are reserved only to God, and are exempt from the authority of the magistrates. No inhabitant of the Nation shall be compelled to do what the law does not order, or be deprived of what it does not forbid.”
“All inhabitants of the Nation enjoy the following rights, in accordance with the laws that regulate their exercise, namely: of working in and practicing any lawful industry; of navigating and trading; of petitioning the authorities; of entering, remaining in, traveling through and leaving the Argentine territory; of publishing their ideas through the press without prior censorship; of using and disposing of their property; of associating for useful purposes; of freely practicing their religion; of teaching and learning.”
“The Federal Congress shall not enact laws that restrict the freedom of the press or that establish federal jurisdiction over it.”
Article 18, 19
Articles 17, 18
Case significance refers to how influential the case is and how its significance changes over time.
The Supreme Court is the ultimate interpreter of the Constitution and thus its decisions establish binding judicial precedents.
The decision is significant in the context of rights and liabilities of webpage publishers and search engine service providers.
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