Friday March 1, 2019

Search Engine Liability under the Argentine Civil and Commercial Code

Published in Spanish in https://abogados.com.ar/responsabilidad-de-los-buscadores-de-internet-en-el-codigo-civil-y-comercial/23018

By CARLOS V. CASTRILLO

A Hypothetical Analysis

Back in 2010 we published our first opinion regarding civil liability of search engines under the Civil Code then in force sustaining that, in certain cases, search engines were liable as mere intermediaries in enabling access to information. The Argentine Supreme Court of Justice has issued two decisions along these lines , but we cannot help but wonder if the doubt has been conclusively cleared and if resuming the issue would not be redundant.

On January 1, 2016 came into force the new Argentine Civil and Commercial Code (ACCC) introducing significant changes in terms of liability, as we will see below, but due to the principle of non-retroactivity of the law, this new code could not be applied to the two decisions currently dictating how this issue should be construed.

Therefore, we would like to make an analysis and suggest a hypothesis that may help reach fair solutions in these situations in the light of the code that has recently celebrated its third anniversary.

To eliminate the element of surprise, the conclusions reached will be the complete opposite of the decisions made in the above-mentioned article, not because we have changed our views but because the legal background has radically changed in nine years since 2010.

Our analysis will revolve around the following questions: How would fault-based liability operate with search engines following the amendment of section 1074 of the Civil Code (CC) through the introduction of new section 1710 of the ACCC? Will they have strict liability under the systemic change driven by Section 1710 of the ACCC and the introduction of new Section 1757 of the ACCC?

Let us look into these matters in the hope of introducing some clarifying ideas and positions.
Search Engines

A search engine is a system that allows indexing a lot of information available on the Internet thereby enabling access to any users who attempt to reach it. In principle, the search engine does neither create content nor reproduce, modify or summarize information; it merely indexes it. But in doing so, it helps locate it and make information that would have otherwise remained hidden and ignored become known and accessible.

Aside from any technological issues, there is no denying that this is a huge intermediation effort featuring the added value of indexation and the easy location of information uploaded to the network by third parties.

As we will elaborate below, search engines—as intermediaries and pursuant to the new regulation that mandates to mitigate or prevent risk altogether—should be able to avoid potential damages to third parties caused by the disclosure of information they enable access to, failing which—in the absence of fraud or fault—their activity would need to be identified as risky.

This compares to biotechnological research in that, as a means to an end, the latter needs to unearth previously hidden or inert viruses or bacteria. These are clearly not created by the research, but disclosing them, enabling their exposition and bringing them together with other living organisms pose the risk of causing damage, and even when such damage involves neither fraud or fault, it would give rise to strict liability because of the risky nature of the activity.

So more questions naturally arise: Could search engines—through technological means—avoid indexing information detrimental to third parties even when they are not responsible for its content? Are search engines the custodians or guardians of the system indexing and enabling the location of information? Could the activity be identified as risky when it fails to meet the new general legal imperative of mitigating or preventing damage?

Fault-based Liability

Section 1074 of the former code established that “Any person who causes damage to another by any omission, is liable only when a provision of the law imposes upon him the obligation of performing the act omitted.”

Before the amendment of the Civil Code, there were no obligations imposed to prevent third parties from suffering other third parties’ actions in the realm of new technologies. The principle alterum non ladere (to hurt no one by word or deed), while adopted by case law, was not construed as a legal obligation of search engines and other Internet intermediaries to prevent damages, although it is limited by the constitutional reservation principle and further endorsed by Section 1074 of the CC that required the existence of a legal obligation for such omission to give rise to a liability.

The cases so far settled are consistent with these rules. But the new civil and commercial code, which is not applicable to them due to the principle of non-retroactivity of the law, seems to suggest a new direction for future court decisions.

Following the Civil Code reform, Section 1710 of the ACCC now reads as follows: “Any person has, within its power, the obligation: a) to prevent causing any unjustified damage; b) to take in good faith and under the circumstances all reasonable measures to prevent causing any damage or mitigate its extent; if such measures prevent or mitigate the extent of any damage for which a third party would be liable, it is entitled to be reimbursed by the latter for the expenses it incurred pursuant to the unjust enrichment rules; c) to not aggravate the damage if already caused” (the underlining is ours).

This has created a general legal obligation to prevent causing damage which embodies the constitutional imperative set forth in Article 19. The former imperative of the existence of a provision of the law for an omission to give rise to liability (Section 1074 of the CC) has been superseded by the general obligation to prevent and mitigate the damage, even when such damage is caused by a third party who is directly liable for it. The rule further provides the possibility of recovering expenses from the person responsible for the damage when the latter could have been prevented or mitigated.

By establishing the right to seek the reimbursement of expenses for a damage caused by a third party when the measures taken prevent or mitigate the damage caused by such third party, Section 1710 of the ACCC recognizes that whoever prevents such damage is not the author thereof and would be alien to the chain of causation giving rise to it . This legal obligation that was absent from the former civil code is entirely aligned with the interpretation of Article 19 of the Argentine Constitution and the reservation principle acknowledged by it. The law now provides that anyone capable of preventing or mitigating a damage should do so or would otherwise be held jointly liable for the damages caused arising from a concurrent obligation , not as the perpetrator but based on the unjustified failure to prevent or mitigate the damage.

Thus, any search engine will be responsible for preventing or mitigating damages and may only justify its failure to do so—consequently being exempted from fault-based liability—in the event of:

1- Lack of discernment, potentially stemming from ignoring the potential damage.
2- Lack of freedom due to technical obstacles that may prevent it from acting as and when required to prevent or mitigate the damage caused or that may be caused by the information indexed by it.
3- Lack of intent due to error or force on assessing the harmful nature of the information indexed by it.

However, if all requirements for an act to exist (discernment, intent and freedom) are met, the failure to prevent or mitigate the damage will not be justifiable and will make its author liable for its compensation pursuant to the fault-based liability standard to the same extent it could have mitigated it. If any of the above requirements were missing, such party’s behavior would be deemed a human act and would not generate any fault-based liability. Below we will deal with the potential existence of strict liability.

Evidently the search engine could not prevent the damage in most of the cases as (being a system) it is unable to now the content of the information it indexes or the potential risk it may pose. This prior knowledge could only be achieved by technological developments with the aid of artificial intelligence as long as we are dealing with reasonable solutions, as demanded by Section 1710 of the ACCC.

With the help of artificial intelligence, this current obstacle is more likely to be overcome and the ‘inability to act’ excuse will be less and less feasible and justifiable. Today it all comes down to issues of fact and evidence as regards reasonableness (which leads to factoring into the reasonableness equation the cost of having these tools and the certainty about the risk of damage of the indexed information).

As regards discernment, the owner of the search engine (being a system) will not be apprised of the damage until an accusation is filed by the injured parties, and will only be compelled to act when it is legally certain that the damage is not justified.

Freedom is another requirement for an act to exist which differs from a mere involuntary human act and supplements discernment. Freedom may sometimes be confused with discernment as the lack of technological resources may play both against the knowledge of the harmful act and against the freedom to quickly act upon learning of its existence.

Finally, as regards the error and duress defects, the former may arise whenever it is reasonable to think that the actions of whoever harms third-party’s rights are justified, and the latter when the content’s author manages to convince the search engine’s owner that there was justification to cause harm. Once again, these are issues of fact and evidence whose discovery techniques and processes will be evolving and decreasing as technology advances.

These assumptions will fall under the purview of the judge and its expert witnesses when assessing whether the measures to prevent or mitigate the damage have been adequate pursuant to the provisions of Section 1710 of the ACCC, and whether or not there is fault-based liability.

The judge may rely upon Section 1727 which differentiates direct from indirect and unforeseeable consequences, and upon section 1725 relating to conduct assessment . The required context to apply these sections will be provided by expert witnesses and the then current practice at the time of the omission.

Freedom of speech—under which no flagrant offences or severe damage can be caused to other persons—has no bearing on the matter at stake. We disagree with the ruling of the Argentine Supreme Court of Justice in the sense that search engines are protected by freedom of speech to the extent purportedly given to this protection. If the owners of search engines are aware of damages caused to third parties through their platforms and while being able to prevent such damage through reasonable means they fail to do so, they are liable for such damages pursuant to Section 1710 of the ACCC and will not be able to avail themselves of freedom of speech. Freedom of speech does not authorize the false accusation of a crime or defamation of character, or the violation of someone’s right of privacy, or the commission of any type of crime. This differs from being unable to prevent or mitigate the damage in time—whether due to technical impossibility or unreasonable means, i.e., the nonexistence of tools that allow preventing or mitigating the damages that may be caused to third parties by indexing and consequently providing access to or enabling this information.

It is clearly understandable that a search engine indexing plenty of information cannot reasonably filter what is legal content from what is not. This does not mean that it can avail itself of the freedom of speech to harm anyone without justification or to exempt itself from preventing the unjustified damage or mitigating it when apprised thereof. Its defense may be based on its lack of fault or fraud in the production of the damage, but it will never be justified in causing or preventing the damage if it is aware of its lack of justification and doing so is within its power.

Strict Liability

While in force, Section 1113 related to Section 1074 of the CC in that it required a legal obligation for an omission to give rise to civil liability. Therefore, no risk could be derived from an inaction if there was no previous legal obligation to act. Case law was then reasonably clear in that indexing should not be deemed a risky activity if such risk—caused by it by providing access to potentially harmful information—did not in turn stem from an obligation to act to mitigate or prevent the damage caused even through cause.

In fact, if there is no legal obligation to prevent or mitigate the damage caused by another, what could be the risk of the indexing activity enabling the production of the damage by such third party for which the search engine is not answerable? The third party would always be the one causing the damage and be liable for the greater risk of such damage occurring. The search engine would be alien to such occurrence and would not be liable for the omission of an act that no rule has compelled it to perform.

But now that the obligation to prevent or mitigate the damage does exist, our vision of search engines varies. The provision of the indexing feature indirectly anticipates that there will be content that may cause unjustified damage and that due to the systems being used, search engines will not be able to prevent or mitigate such damage despite the now current legal obligation to do so. We concur with Galdos in that an activity will be risky or dangerous when (either naturally or incidentally) it can be anticipated (in the ordinary course of events) that its development will lead to the real possibility of causing damage. In the matter under analysis, such real possibility arises from the search engine’s inability to mitigate or prevent the damage whose risk is increased by the access to the information generated by third parties and enabled through indexing.

Any computer system that enables the generation of damage by third parties and lacks resources for its early recognition, or for preventing and/or mitigating it as mandated by law is clearly risky because it fails to fulfill this obligation. This may lead to questions regarding the risks posed by telephony as it enables communication (defamation of character, blackmailing, frauds, etc.). But we should remember that no telephone tapping can be performed without a court warrant, which is enforced when there is a presumption that a crime is being committed. In the case of search engines, information is public and the system enabling its indexing is unable to recognize its content until the victim suffers the damage.

This means that the system is posing an additional risk to society (by not being able to prevent or mitigate a damage enhanced by itself) which is managed and enabled—but cannot be prevented or mitigated—by it. The owners of search engines themselves have deliberately caused their impossibility of complying with the law since their system, despite increasing the risk of damage, can neither mitigate nor prevent it.

Which risk is this? The possibility of someone sustaining damage. The search engine is clearly and indirectly increasing the risk but, unlike before, it is now responsible for preventing or mitigating the damage but fails to do so. Plus, its position compares to that of an Act of God or force majeure event as there would be no room for fault-based liability given that a requirement is missing for the human act to be voluntary despite being indirectly related to the production of the damage by omission. Just like it happens with all things or activities that are risky, whenever there is an element missing to hold its owner, guardian or economic beneficiary liable pursuant to a fault-based standard, it is held accountable for having introduced a risk without the consent of society as the victim.

This has nothing to do with condemning the activity or the thing. Cars are extremely useful to society and not having them would be unthinkable. However, there is no doubt about their risk and their owners or guardians are held accountable for the damages suffered by a victim due to such thing, except when the guilt lies with the victim or a third-party for whom the owner, guardian or economic beneficiary is not answerable.

So, if an elevator lacks a safety device to prevent a door from closing when a passenger tardily tries to get on the car is said to be risky, and the machine’s risk lies with its owner (and nobody doubts that elevators are quite useful to society).

It cannot be denied that an indexing system that enables access to information that would otherwise remain hidden or difficult to access, and which is incapable of detecting the risk of damage, is a risky activity. When there is no fault-based liability of its owner, strict liability may clearly exist for the risk inherent in the activity.

This risk will undoubtedly diminish as today’s limited technology evolves. But in the meantime, it is not fair that anyone would be exempted from complying with the legal obligation to prevent or mitigate a damage enhanced by the very system it has created and which would rarely occur otherwise, and that the victim should pay the price.

In line with KUBICA’s views as regards the criteria to justify strict liability, it is our opinion that: a) it should lie with the person 1) creating such risk through that activity; 2) who is in the position to control and minimize such risk; and 3) capable of measuring/assessing such risk, which means that it may orchestrate agreements to fund compensation in the event the risk materializes through mechanisms such as insurance or mutual funds; b) it should be abstract; c) the danger must be impossible to eliminate through all reasonable precautions, which is exactly what happens with search engines; d) the damage derived from the specific activity must be characteristic of the risk inherent in and resulting from such activity; e) it must derive from a special, exceptional or considerably enhanced risk; f) the likelihood and severity of the damage .
Lastly, we believe that the amendment of the Civil and Commercial Code has brought serious consequences regarding search engines’ liability and unless specific laws are passed that reasonably limit or restrict such strict liability, today there should be no doubt about it, at the risk of undermining Article 16 of the Argentine Constitution (equal protection of the law).

Conclusions

From the analysis of the amendment of the civil and commercial code, the following conclusions can be drawn:

• The Civil and Commercial Code has introduced considerable changes to civil liability as it creates the general duty to prevent or mitigate the damage that was previously nonexistent.

• The duty to prevent or mitigate the damage, even that caused by a third party, is an autonomous legal obligation that generates a concurrentobligation and makes the offender liable for damages.

• As a consequence thereof, strict liability has suffered a systemic change.

• Admitting the general liability by omission gives rise to strict liability as the obligation to prevent or mitigate the damage cannot be fulfilled because the system (through no fault) lacks resources to do so, while the human being managing it, given the amount of information handled by these systems, cannot be held accountable based on fault-based liability.

• The causal relationship between the damage caused and the search engine’s omission is indirect as the system is responsible for increasing the risk and enabling a damage which, without such system, would hardly be produced and, on the other hand, it can neither mitigate nor prevent the damage.

• The lack of strict liability of search engines would be a serious impingement on Article 16 of the Argentine Constitution as regards all activities and things whose owners or beneficiaries must bear the cost of strict liability.

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  1. Carlos V. Castrillo, Search engine liability. LA LEY2010-A, 897, see also http://castrillo.com.ar/responsabilidad-civil-de-los-buscadores-de-internet/ last visit 25/12/2018
  2.  http://sjconsulta.csjn.gov.ar/sjconsulta/documentos/getDocumentosExterno.html?idAnalisis=739942 last visit 26/12/2018
  3. https://sjconsulta.csjn.gov.ar/sjconsulta/documentos/verDocumentoByIdLinksJSP.html?idDocumento=7162581&cache=1509324967388 last visit 26/12/2018
  4. Section 1710 of the ACCC “Any person has, within its power, the obligation: a) to prevent causing any unjustified damage; b) to take in good faith and under the circumstances all reasonable measures to prevent causing any damage or mitigate its extent; if such measures prevent or mitigate the extent of any damage for which a third party would be liable, it is entitled to be reimbursed by the latter for the expenses it incurred pursuant to the unjust enrichment rules; c) not to aggravate the damage if already caused”.
  5. Section 1757 of the ACCC – Risks of items and activities. Any person is liable for the damage caused by the risk or defect of an item or the risk or danger of an activity itself, the means used in its performance or the circumstances under which it is performed. Liability is of a strict or objective nature. An administrative authorization for the use of the item or the performance of the activity, or compliance with prevention measures shall not constitute a release of liability”.
  6. No inhabitant of the Nation shall be obliged to perform what the law does not demand nor deprived from what the law does not prohibit tps://www.thunderbolts.info/wp/una teor forma de resumen)cionalidad. a los primeros filtes que se produci anterior sobre el ayu
  7. Along these lines García Pullés, Fernando R, LA RESPONSABILIDAD DEL ESTADO EN EL CONTEXTO DEL NUEVO CÓDIGO CIVIL Y COMERCIAL DE LA NACIÓN [STATE LIABILITY UNDER THE NEW NATIONAL CIVIL AND COMMERCIAL CODE], page 471, at http://www.derecho.uba.ar/docentes/pdf/el-control-de-la-actividad-estatal-ii/cae2-garcia-pulles.pdf, last visit 25/12/2017
  8. SECTION 850.- Concept. Concurrent obligations are those in which several debtors owe the same subject matter by different reasons. SECTION 851.-Effects. Unless otherwise expressly provided, concurrent obligations are governed by the following rules: a) the creditor may claim the relevant payment to one, several or all the co-debtors, whether simultaneously or successively; b) the payment made by one of the debtors discharges the obligation of the other concurrent debtors; c) the delivery of a thing in lieu of payment, settlement, novation and set-off in respect of one of the concurrent debtors, to the extent these acts satisfy in full the creditor’s interest, discharge the obligation of the other concurrent debtors or, as the case may be, discharge it partially, to the extent of the satisfied portion; d) the merger between the creditor and any of the concurrent debtors and the waiver of the credit in favor of one of the debtors, does not discharge the debts of the other concurrent debtors; e) the expiration of the statutes of limitation and the interruption and suspension of its term does not affect the obligation of the other concurrent debtors; f) the default by one of the debtors does not affect the obligation of the other debtors; g) a judgment passed as res judicata against any of the co-debtors is not enforceable against the other debtors, provided, however, that these may claim it when it is not based in personal circumstances of the co-debtor sued; h) the action for contribution filed by the debtor that pays the debt against the other concurrent debtors is governed by the causal relationship giving rise to the concurrence.
  9. SECTION 1717. Unlawfulness. Any act or omission that causes damage to another is unlawful if it is not justified.
  10. SECTION 1727: Types of consequences. The consequences of an act which result from the natural and ordinary course of events are called in this Code “direct consequences”. The consequences that result only from the relation of an act to another event are called “indirect consequences”. Indirect consequences which may not be foreseen are called “unforeseeable consequences”.
  11. SECTION 1725: Conduct assessment. The greater the duty to act with prudence and full knowledge of things, the greater diligence from the agent and greater capacity to foresee the consequences are required.
  12. https://cij.gov.ar/nota-27571-La-Corte-Suprema-reafirma-su-doctrina-en-materia-de-responsabilidad-de-los-buscadores-de-internet.html [The Supreme Court reaffirms its doctrine on Internet search engines liability] last visit 24-12-2018.
  13. Galdos, Jorge M, “Responsablidad por actividades riesgosas y peligrosas en el nuevo código”[Liability for hazardous and dangerous activties under the new code], La Ley, Volume 2016 B, http://www.psi.unc.edu.ar/acaderc/responsabilidad-por-actividades-riesgosas-y-peligrosas-en-el-nuevo-codigo/at_download/file, last visit 26-12-2018
  14. KUBICA, Maria Lubomira, EL RIESGO Y LA RESPONSABILIDAD OBJETIVA [Risk and strict liability] page. 74 / 79, Doctoral thesis. https://www.tdx.cat/bitstream/handle/10803/328430/tmlk1de1.pdf?sequence=5 last visit 27/12/2018