Law historically developed in the shadow of social phenomena and events. At a time in which evolution is as dizzying as we are living nowadays, this gap is much more noticeable. An example of this is the substituted service that is archaic, but has not yet been replaced by electronic notifications; the requirement of having copies of the contract is also expected to be replaced by electronic contracts, facilitating and speeding up commercial activity.
In this article, we will analyze the liability of web browsers for the searches made through them. While they are tools that do not force anyone to search the Internet for something in particular, it is clear that it would be impossible that certain contents achieve the visibility they have without them. The key argument for attributing liability to developers and exploiters of these tools is that without search engines, nothing would be found on the Internet (which is true in all cases: without search engines that index the information, Internet would never have been the tool that it is today, for better or worse). These are cases in which a tool causes considerable and irreparable damage in the honor of a person, since it is impossible to erase information from the network once it goes viral; there is always some information left somewhere. The only thing that can be done is to restrict the search within the main search engines so that the content is more difficult to find.
In news related to this phenomenon, we found that in the first half of 2012, the directors of Google Brazil were arrested for not complying with a court order to restrict the searches of a video with political content. Moreover, last year, there was a similar dispute with a video showing offensive cartoons of Mahoma, which was restricted in several Muslim countries. Another type of content in the web that is harmful, mainly for celebrities due to the level of exposure, are private erotic videos that for some reason are published on the Internet. In all these cases, we find a collision of rights of constitutional roots: on the one hand, we have the exercise of freedom of the press, and freedom of expression and information, and on the other hand, the dignity, privacy and honor of people.
Within our jurisprudence, there are a couple of cases with judgment rendered within the so-called “trials of models” (lawsuits initiated by famous people due to the damage that certain publications appearing in the Internet search engines caused them). The first judgment on the merits of one of these cases is dated 10 August 2010. It is a conviction against Yahoo, which was published within a week in a NY Times article due to the importance that a precedent on these issues may have globally. Lawsuits against web browsers (in general, Google and Yahoo, which are the most popular) seek judicial rulings to remove the hyperlinks that lead to the content the plaintiff wants to restrict, as well as economic compensation for personal injury and, in some cases, loss of profits.
The “Leading Case” in this area in Argentina was that of a former member of a music band, whose name was associated with an escorts’ web page along with her image. As a first step, a precautionary measure is adopted so that the controversial content is removed during the proceeding, and when the entire process comes to an end, a final decision on the merits of the matter is issued. In the first instance, the Court granted the petition and ordered that the original content be removed, the searches be restricted, and fixed a compensation of $100,000 for damages, but rejected the loss of profits; both parties appealed. The Chamber of Civil Appeals states that “moral damage depends on time and place”; thus, an act is not equally injurious in different cultures or chronological periods. Then, the first instance judgment was delivered and, currently, the case is in the Supreme Court waiting to be defined. Another case from the same period—in this opportunity, it involved an actress—, also had a similar resolution with a monetary award of $90,000 for damages. In these cases, it seems that our jurisprudence is peaceful and there is not much controversy as to whether compensations are appropriate or not (this is not the case with regard to arguments). It is difficult to quantify the damage caused, since this is not established in any law, so it is entirely up to the judge’s judgment.
Regarding factors of attribution of liability, there are discrepancies between judges and members of the Chamber. However, the mainstream understands that for web browsers it is a matter of strict (the party causing the damage had no intention of doing so) non-contractual (it does not arise from any contract between the disputing parties) civil liability (not criminal, just monetary liability). Next, we will list the types of liability the respondents usually bear.
Companies exploiting Internet search engines undertake a “risky” activity (in the sense that the potential of causing damage is latent) and it ends up being unlawful (for causing damage that can or cannot be evident). With regard to the liability of the Webmaster, there is a dispute, since it can be considered strict or personal liability; it will probably depend on the judge’s judgment, who should take into account the website traffic and amount of information and whether it was possible that the person responsible for the website was aware of the material and the damage it would cause.
To end this brief review on liability in the field of cybernetics, we emphasize that, in any case, it begins with the claim. No action of the defendant may be required without having knowledge of the damage. Furthermore, it is impossible to demand that web browsers control 100 per cent of their information, and while just assigning strict liability to them, it seems that this is the criterion in Argentine jurisprudence.