A ruling by the Civil Court of Appeals ordered search engines Google and Yahoo! to pay damages for unauthorized use of actress's image in search engine results.
On August 31, 2012, Division J of the National Court of Appeals in Civil Matters of the City of Buenos Aires reversed the district court's decision and ordered Google and Yahoo! to compensate actress Paola Krum with AR$ 75,000 and AR$ 15,000 plus interests for moral damages caused by having her image related to web pages of sexual, erotic and pornographic contents that appeared listed in their search results.
The decision ordered the search engines to eliminate from their respective result pages Ms. Krum's image and/or name in connection with websites of sexual, erotic and pornographic contents, sex offer and the like, with the only exception of those sites that correspond to digital editions of press media, and to eliminate and refrain from including any image of hers in their search engines of images ("thumbnails").
The district court had rejected the complaint for considering that fault-based liability applies to web search engines, and adhered to the position that guilt can only exist as of the moment the search engine has "effective knowledge" of the infringement, as in the case of a judicial notification.
The Court of Appeals did not share the trial court's view and considered that the applicable standard for search engines is that of strict liability, pursuant to rules for products' liability and inherently dangerous activities under Section 1113, second paragraph, of the Civil Code. The Court of Appeals declared that search engines are not only search facilitators but also promoters of the damages and that the argument that search engines conduct their searches automatically by robots is not relevant because the code used to carry out their chores is designed and developed by humans.
In addition, the Court declared that "the measures requested by the complainant do not seek stopping any criticism, or forbidding the dissemination of thoughts or ideas, or silencing any issue of public interest" but "the defense of values especially protected by the national and international laws, preventing the dissemination of the illicit activity of those who use her name and/or image to deceptively advertise sites related to sexual commerce and pornography."
The Court of Appeals also declared that "none of the complainant's petitions distorts the right to information, or those of the owners of the various sites that illicitly included her name or image, nor those of the search engines as far as they reproduce their own sites" and "that there is nothing that could be qualified as news or opinion and thus it is not possible to speak of censorship".
The criterion adopted by Division J in its ruling is directly opposing the one followed by Division D of the same Court of Appeals in re "Da Cunha Virginia v. Yahoo de Argentina SRL and other on damages", which, on August 11, 2010 in a divided decision applied the fault-based liability.
"Da Cuhna" was appealed and is currently pending before the Supreme Court, the highest court in Argentina, which is expected to issue a decision that may put an end to this kind of conflict and decide on the liability criterion to apply to web search engines for the damages caused by the contents of the web pages they disclose.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.