Case Summary and Outcome

On June 16, 2020, the Cámara Criminal y Correccional Federal (the Federal Criminal and Correctional Chamber) in Argentina revoked a magistrate’s order directing Google to remove certain URLs from its index. Google argued that the order affected the information available in other countries, and therefore violated the principle of state sovereignty. The Court held that the magistrate’s order impacted domains and services subject to foreign law and, as such, not only violated national laws of other countries but also implied that an Argentinian magistrate had the power to decide the content that was found and read on the internet by people around the world.  Consequently, the proliferation of such orders would cause significant interference with freedom of expression and the right to seek, receive and disseminate information freely because each state could exercise control over the content available to citizens of other countries to the detriment of freedom of the press which is one of the fundamental constitutional rights.

Facts

The action was brought by Enrique Santos Carrió, son of Elisa Carrió an important political figure in Argentina, in relation to a series of articles alleging that Santos had been arrested in Mexico for possession of weapons and a shipment of drugs, and an alleged connection with different drugs cartels. The various posts could be traced back to 2017 and it is said that they were shared more than 24.000 times on Facebook.

On March 14, 2019, the magistrate directed Google (“appellant”) to remove URLs dealing with the arrest of Enrique Santos on account of them being false.

On appeal Google argued that the order should have been directed to the news portals responsible for the publication whose falsehood was alleged. Its contention that it was merely an intermediary between users and the websites that existed on the Internet, and it did not create the information available, was rejected. Relying on the precedent of Rodriquez v. Google from 2014, the Federal Criminal and Correctional Chamber found Google negligently liable for the false news that adversely affected Carrio’s reputation.

On February 14, 2020 Google was notified of an extension of the precautionary measure and ordered to comply with it. Google filed the present appeal against the decision of the magistrate.

Decision Overview

The case was decided by Justices Dr. Pablo Bertuzzi, Dr. Mariano Llorens and Dr. Leopoldo Bruglia. The main issues for consideration were whether the judges could direct the intermediaries or the search engines to remove the URLs from their index, on account of them being false news or contradictory to the local regulatory framework, and whether such an order would violate the principle of territoriality of the law.

Google’s main contention centered on the extra-territorial jurisdiction, where, it argued, the lower court had illegitimately interfered in jurisdictions outside its territory. It stated that the order of the lower court extended to the domains which fell outside the jurisdiction of the Argentine courts (www.google.com ; www.google.es; www.google.mx) and that if it executed the disputed decision, then it would affect domains or services subject to foreign law, and breach the legal framework of the countries affected by this measure.

Google further submitted that the blocking or elimination of the pages of these countries could be carried out only in accordance with the corresponding local laws and that the order of the Argentinian lower court would violate the general principles of state sovereignty, international comity and resolutions issued at the international level, which expressed the impossibility of intervention of a state in the territory of another state, without its consent.

It pointed out that removal of the said content from Google.com would lead to its deletion from all global servers, which would imply that an Argentine magistrate had the power to decide on content that could be read and/or found worldwide through the internet. Google also argued that the validation of the lower court’s order would legitimize other states to exclude certain content in accordance with their own national laws, which would become a serious obstacle to freedom of expression and the right to seek, receive and impart information freely.

The judges accepted the arguments of the appellant. They noted that the classification of the content published as “political news”, “false news” or any other cataloging that could be attributed to it, would depend on the jurisdiction of the intervening court, and had to be decided in accordance with the laws of corresponding nations.

The judges also observed that the extension of the magistrate’s order to domains or services subject to foreign law, would not only breach the legal framework of other countries but also imply that an Argentinian magistrate has the power to decide the content that can be found and read on the internet by people around the world, which would create intolerable interference with freedom of expression and the right to seek, receive and impart information freely, because each state could exercise control over the content that citizens of other countries can find. This would prove detrimental to the adequate balance and existence of freedom of the press as one of the essential constitutional rights. Therefore, the judges revoked the disputed order of the magistrate.