Half-sanction for the new unified bill on Internet Service Provider (ISP) Liability
1. Introduction. The National Senate finally gave half-sanction to the unified bill on Internet Service Provider (ISP) Liability. Our country lacks a law on this matter: since 2006 there have been several regulatory attempts, but all projects have been cut short. After much debate, Senator Liliana Fellner, in her capacity as president of the Communication Systems and Freedom of Expression Commission, presented a bill that unifies those filed by Senator Federico Pinedo (S-942/16) and by Senator Fellner herself (S-1865/15).
Case law precedents and doctrinal debates made eagerly awaited a law that specifically and in depth regulates ISP liability and, in particular, that of internet search engines, so that —as Article 1 of the bill prescribes— freedom of expression and the right to information are guaranteed, while preserving the rights to honor, privacy and image of persons, and any other right that may be affected. The bill, with half-sanction, entered the Chamber of Deputies, where it was assigned to the Communications and Information Technology, Consumer Defense and Justice commissions.
2. Analysis of the bill. The purpose is to regulate ISP liability, guaranteeing freedom of expression and the right to information of society, preserving the rights to honor, privacy and image. Only personal rights were included, without taxatively incorporating intellectual property rights. The regulatory delay is evident in light of the international context's progress and the Conclusions of the XXV National Conference on Civil Law (2015), which expressed the urgent need to harmonize freedom of expression with fundamental individual and collective rights.
The bill uses a broad definition of ISP, with an exhaustive list of who should be considered as such, which is very encouraging. Its Articles 4 and 5, through the exception rule, attribute subjective liability to ISPs, exempting them from the duty to monitor or supervise content generated by third parties, even for the purpose of preventing future infringements.
The criterion adopted regarding the subjective attribution factor is appropriate, especially for search engines: the application of an objective factor would generate inappropriate incentives, requiring intermediaries —which in principle do not create or modify the information published by third-party sites— to engage in preventive conduct over the quality of indexed content, which is impossible to carry out practically and legally. A dangerous prior censorship could be produced affecting the personal rights of providers, the community and even the potential claimant, and the internalization of costs for future convictions could be passed on to the user or cause an activity of immense value to disappear.
The bill echoes national and foreign jurisprudential trends, although doctrine remains divided, as demonstrated by the Conclusions of the 2015 Civil Law Conference. Along these lines, a search engine must respond for third-party content when, having taken effective knowledge of its illegality, it does not proceed to carry out what the judge orders.
Originally, the unified bill had opted for the summary process route —extremely slow given the speed of the internet—, but thanks to the suggestion of Senator Juan Mario Pais, the amparo route before the federal judge with jurisdiction in the plaintiff's domicile was adopted, also improving the judge's ability to order precautionary measures. Following the doctrine of the CSJN in R., M.B. v. Google Inc. on Damages (10/28/2014), it is established that the plaintiff must specify the link where the questioned content is hosted or the procedures to access it (Art. 6).
Regarding the determination of effective knowledge, the judicial mechanism was chosen, establishing with total clarity that in no case will the self-regulation system be considered to imply effective knowledge (Art. 7). Although the doctrinal trend advised that the rule be judicial notification, it would have been advisable to provide for a system that followed the Court's rule, distinguishing cases in which the harm is gross and manifest from those in which it is doubtful or requires clarification. Finally, the bill leaves to the discretion of the ISPs their willingness to self-regulate, generating alternative mechanisms for notification, takedown, blocking, etc.
3. Gaps in the bill. It only regulates ISPs that provide services in Argentina. It does not regulate intellectual property infringements. It is out of sync with the general duty not to harm and to prevent harm (Art. 1710 of the Civil and Commercial Code). It omits the creation of a protocol for fast takedown through simple digital notification to the ISP, for those illicit and harmful contents that the CSJN classified with special care: child pornography, data that facilitate the commission of crimes, apology of genocide, racism or discrimination with manifest perversity, incitement to violence, content that disrupts ongoing judicial investigations, contemptuous injuries to honor, notoriously false montages or serious privacy violations. It also does not regulate the right to be forgotten.
4. Conclusion. We finally have a great opportunity for our country to have regulation on Internet Service Provider liability. The bill has important shortcomings, a result of the difficulty in achieving consensus and the complexity of the issue. It is to be hoped that the Chamber of Deputies will deeply debate the text, listen to criticisms and incorporate the suggested improvements. And if this bill finally becomes law, there is still a long way to go: new bills will be needed to regulate intellectual property on the internet, personal data and the right to be forgotten, protection of women against gender violence and protection of minors, among other fronts.