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By Javier José Pallero.

Back in the 2000s a landmark case regarding Internet law set the principles of a complex discussion that was to last until the present day. That case, would set the stage for a regulatory scenario with the potential to overthrow entire business models or rather build new ones.

We’re talking about the Napster case.

Back in the day, Napster was found guilty of contributory infringement in relation to copyright violations, but the discussion regarding the scope of intermediary liability was far from over. In fact, in some other countries where contributory infringement is not as serious as in the US, similar cases would lead to different rulings.

In other areas of litigation, the middle-men have also suffered penalties. It is widely known that presumed defamations as well as violations to the right to self-image have caused the one affected to sue the intermediaries who make such information available, instead of those who originally published the content in question.

This preference for intermediaries, in both copyright and defamation lawsuits, is typically marked by three facts:

  • Intermediaries are easier to identify: and therefore, they become the only ones to sue in cases where the alleged infringer remains anonymous.

  • Intermediaries usually have (or purportedly have) the technical ability to ensure the compliance to court rulings. (i.e. cases where defamatory content spreads rapidly across services such as search engine results)

  • Intermediaries are often richer than the alleged infringers: this is particularly true regarding lawsuits that demand for economic compensations for damaging content.

Freedom of Expression

The core issues marking the difference in legal treatment across different countries (and between different judges in the same country as well) arise from the tension between the aforementioned rights (copyrights, right to self image, honor, etc.) and freedom of expression.

Freedom of expression is a fundamental milestone for political participation, information access/production and non discrimination. And as any other fundamental right, it applies entirely to the Internet. That’s the case made by UN, OSCE, OAS & ACHPR Special Rapporteurs on Freedom of Expression in this statement.

Irrespective of the obvious negative implications derived from the lack (or alteration) of freedom of expression, the imposition of excessive civil or criminal liability to intermediaries would likely result in an obstacle to innovation.

User content services on the Internet, such as social networks and search engines, relies on the capacity to provide its users with an open way for information access and trafficking. Imposing excessive obligations on such services, in the shape of over inflated data retention terms, “strict liability” (liability regardless of culpability) or enforceable private parties notices; could stifle innovation, specially in the case of small business or tech startups.

It is clear that legitimate and proportionate court orders should be complied with. However it is important that those rules don’t end up being a threat of criminal or economic sanctions to business; which could in turn, generate a kind of “chilling effect” in tech innovation.

Argentina Today

The Supreme Court of Justice in Argentina is now in the process of deliberation about what will become a leading case about intermediary liability. Many of the positions explained in this article will be under analysis. Similar cases are being addressed in other countries of the region.

I sincerely hope that freedom of expression and its benefits will become the prevailing argument, thus protecting the free flow of data and entrepreneurial opportunities.

Javier José Pallero is an Internet Law and Policy Analyst from Córdoba who has been researching about Internet Law for Ageia Densi Argentina since 2010. Javier works as an Editor and Columnist for legal issues and regulatory trends in Internet.  In 2013 he was selected by the Policy Fellowship Program from Google. Inc. focused on the design and evaluation of Internet Public Policies and was also awarded a scholarship by ADC Derechos to study topics related to internet freedom of expression and neutrality on the web.