Let’s say the I photoshop a picture of you so that it appears that you are involved in a crime. I anonymously upload that picture to Flickr, Picasa, Fotolog, and other photo sharing sites. Then I anonymously publish several blog posts that feature the photo and claim it’s really you. There’s no way to prove that I published either the photo or blog posts, but all of a sudden when anyone searches your name on Google most search results show you committing a crime which in fact you never committed. This affects your ability to find a job, a date, even a place to live. In fact, it’s had such a negative impact on your life that you decide to take legal action. But against who? You can’t sue me because there’s no way to know that I uploaded the content. You could try to sue WordPress.com for publishing defamatory content on their blogging service, but the content would still live on elsewhere. You could sue Google for amplifying the defamatory content every time someone searches for your name. You could sue the host of the servers that also have a role in making the defamatory content accessible. Or you could even sue Internet service providers for not blocking access to the defamatory content.

All of these options probably appear almost equably absurd and yet different courts in various countries have found them guilty for their role in spreading illegal content. This is generally referred to as intermediary liability — that is, the liability of the content and service providers that are in between someone who publishes online content and someone who reads it. The Center for Democracy and Technology has an excellent paper that examines how intermediary liability is treated in the US, Europe, and China. But until recently, little has been written about intermediary liability in Latin America (“responsabilidad de terceros” in Spanish), which is interesting given that there are probably more intermediary liability lawsuits in Argentina and Brazil alone than the rest of the world’s countries altogether. In fact, a 2009 paper by the University of Palermo’s Center for Studies on Freedom of Expression and Access to information shows that at least 130 lawsuits in Argentina have been filed against Google and Yahoo to demand that they remove particular search results about celebrities and public profiles. The most famous lawsuits were filed by Diego Maradona, swimsuit model Yesica Toscanini, and singer Virginia da Cunha. Today if you search Yahoo! Argentina for an image of Yesica Toscanini, who is admittedly delightful to look at, this is what you will see:

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“Due to a court order requested by private parties, we have been forced to temporarily suppress all or some of the results related to this search.”

Maybe it’s not such a bad thing that Argentinians are not able to spend their hours flipping through the 50,400 images of Toscanini that exist on Google.com. (Of course, actually they are: they just have to search using Google.com rather than Yahoo! Argentina.) But what is worrying is that three high profile Argentinian judges have also filed lawsuits demanding that they are removed from search results for their names. Imagine if Clarence Thomas or Elena Kagan were able to successfully file a lawsuit against Google that required the search engine to remove all results if you search their names. In 2008 judge Maria Servini de Cubria – whose rulings have been questioned by Argentinian bloggers – sued Google, demanding that the search engine block access to all information about her. She won the court case, but it was later overturned by the National Chamber of Civil Appeals.

Tangent: in 1992 Servini de Cubria famously censored comedian Tato Bores after she was made aware that he was to perform a satire about her mishandling of a case. Argentina’s artistic community came out to support Bores by performing the legendary “Judge Barubudubudía” — clear reference to Servini de Cubria without actually mentioning her name.

There are many other examples of intermediary lawsuits in Latin America. Facebook was sued in a Mendoza court for groups that had been created on the social networking site that encourage high school students to miss class. According to Judge Alfredo Dantiacq Sanchez it is up to Facebook to police its content to make sure that such groups are not made accessible. Marcel Leonardi, a Brazilian professor of Internet law at Fundação Getulio Vargas-Sao Paulo, estimates that Google currently faces at least 600 lawsuits in Brazil. The most famous of those cases was filed by two Brazilian teenagers against the Google-owned social networking site Orkut over dirty jokes that allegedly offended them. According to Sam Bayard:

The court imposed a $2700 fine for each day that the offending pages remained up and ordered Google to stop similar material from being posted in the future. Ironically, the court apparently cited Google’s censorship of material in China as proof that it was feasible to do so in Brazil, leaving out Google’s showdown with China and its ultimate decision to pull out of China altogether.

Last year a Brazilian blogger was fined nearly $10,000 because a troll commenter on his blog insulted a nun.

The Peruvian blog Plan H notes that several Peruvian websites, including the adult website Cholotube, have also been sued and/or investigated for content uploaded by their users. In fact, the only Latin American country that explicitly protects intermediary content providers from lawsuits is Chile, which had to update its intellectual property laws as an requirement by the 2003 United States-Chile Free Trade Agreement. But as of August of this year a group of Chilean senators is trying to pass a law that would again hold intermediaries liable for defamatory content published on their platforms.

As Google Senior Policy Counsel for Latin America, Pedro Less argues in Americas Quarterly, not only do these costly lawsuits restrict technological innovation, they also remove public figures from the public sphere and promote self-censorship. (The Brazilian blogger who was fined $10,000 for the comment insulting the nun took down his blog last year.)

Despite all this bad news, there are plenty of reasons for optimism. Two months ago the National Chamber of Civil Appeals cleared Yahoo and Google of defamation charges against Virginia Da Cunha. (One of Da Cunha’s lawyers, Gustavo Tanus, said he intended to appeal to the Argentine Supreme Court.) Latin America is also home to what is probably the most progressive internet regulatory proposal anywhere in the world, Brazil’s Marco Civil. Brazil just had a major election that brought many new faces to congress and it remains to be seen how they will approach issues of internet regulation, but if the Marco Civil is made into law then it will clearly and consistently protect intermediaries from lawsuits related to user generated content.

In the third and final post in this series I will review other threats to online freedom of expression in Latin America that were discussed at last week’s meeting on freedom of expression and the internet in Buenos Aires.

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