[bestbits] My article this week: Intermediary Liability Doctrine: Same Wine in New Bottle?

[Eduardo Bertoni]

*Apologize for cross posting*
Dear friends and colleagues,

I just published in MLRC <http://www.medialaw.org/> MediaLawLetter a short
article that might be in your interest titled:

*Argentina Supreme Court Protects Online Reposting Intermediary Liability
Doctrine: Same Wine in New
Bottle?<http://ebertoni.blogspot.com.ar/2013/10/argentina-supreme-court-protects-online.html>
*

The piece is copied below.

Best,

Eduardo Bertoni


*Argentina Supreme Court Protects Online Reposting Intermediary Liability
Doctrine: Same Wine in New Bottle?*

originally published at MLRC <http://www.medialaw.org/> MediaLawLetter,
October 2013.

Like other Latin American countries, Argentina does not have specific laws
governing liability for online intermediaries for third party posted
content. The absence of specific laws on intermediary liability has become
particularly problematic in defamation and invasion of privacy cases, with
judges applying laws passed in an era when the Internet was not even
imagined. In some cases, judges have ordered intermediaries to pay damages
for third party content, but other cases have held the opposite.

A recent decision from the Argentina Supreme Court may provide some help.
The Court applied an old doctrine to decide that an intermediary should not
be liable. Sujarchuk Ariel Bernardo c/Warley Jorge Alberto s/daños y
perjuicios” –SC, S.755, L.XLVI.

Background

The facts of the case are simple. The defendant, Mr. Warley, posted on his
blog an article written by another person. The article, according to the
plaintiff Mr. Sujarchuk harmed his reputation and he claimed for damages
against Mr. Warley, who, besides posting the article, added as a title to
the post containing the word “sinister” which was not in the original
article.

Plaintiff won the case at the First Instance Judge and also at the Court of
Appeal. However, the Argentinean Supreme Court reversed the decision,
applying the doctrine known as “Campillay” (Fallos 308:789). The name of
the doctrine came from a case decided in the 1980s, and the holding
relevant for the “Sujarchuk” case is: a journalist or a publisher is not
liable for the content published if he or she mentioned clearly the source
from where the content is taken and also he or she has not contributed
substantially to the content that was published.

The Supreme Court followed the arguments of the Attorney General when she
gave her opinion in the case. After highlighting the importance of freedom
of expression as a basic human right and its importance for democracy, the
Attorney General cited the Campillay doctrine and noted that in the instant
case the content of the article at issue was not written by the defendant
but only posted to his blog.

Regarding the title created by the defendant, the Attorney General
considered that this didn’t change substantially what the article itself
said, so it did not defeat the Campillay doctrine: defendant merely
reproduced content written by a third party and identified the source.

The Sujarchuk case could have a great impact in a decision pending before
the Supreme Court where the intermediaries are not bloggers but important
search engines (Google and Yahoo). Though the case “Da Cunha Virginia
c/Yahoo de Argentina SRL y Otro s/ daños y perjuicios” –S.C., D.544,
L.XLVI.- is not decided yet, the Attorney General in her opinion of the
case noted that the “Campillay” doctrine is applicable in cases where the
search engines only indicate the place where information is available on
the Internet.

As I said at the beginning, in Argentina we don´t have legislation like
Section 230 of the Communications Decency Act or the DMCA. However, there
is strong advocacy in Argentina to clarify and to modernize the law in the
country. However, in the meantime, an old doctrine may provide a safe
harbor for intermediaries. In other words, some Judges understood that some
old wine may fit in a new bottle.
Eduardo
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