ISPs’ Liability

There is no specific legislation in Argentina addressing Internet Service Providers’ (ISPs) liability in connection with third-party generated content.

So far, when considering cases involving ISPs’ liability, the courts have applied –under general Civil Law damages principles- either a strict liability or a standard of fault analysis.

On October 28, 2014, the Supreme Court issued a landmark decision in “Rodríguez María Belen”, which established that ISPs are liable if, on the basis of a fault-standard analysis, they are made aware of a possible infringement and they fail to act diligently.

On November 2, 2016, the Senate preliminarily approved a bill which unified the proposals drafted to address ISPs’ liability by Senators Liliana Fellner and Federico Pinedo.

The preliminarily approved bill includes the following key provisions:

1. ISPs are defined as natural persons or legal entities that provide third parties with services, applications or technological resources that allow the use of the Internet, its content, services and applications available thereto. ISPs are classified as access providers, automatic hosting or temporal memory providers (cache), hosting and publication services providers, e-commerce providers and search engines.
2. Content is defined as any digitalized information available through the Internet.
3. In general, ISPs will not be held liable for any content uploaded or generated by any third party, unless the courts order them to remove or block certain content and they fail to do so in the given term.
4. ISPs do not have a general obligation to monitor content generated by third parties.
5. Any person is entitled to institute court action before the federal judge of their domicile and request the court to issue a preliminary injunction ordering an ISP to remove or block any infringing content to which the ISP gives access through any of its services. To that end, the claimant should expressly indicate the URL under which the objected content is located.
6. Nothing in the draft bill should be interpreted as limiting ISPs’ ability to implement self-regulatory systems, which:
   • Provide alternative mechanisms for the notification, removal, suspension or blocking of any content in breach of the ISP’s Terms of Service, as long as the users have been informed of any such proceedings; and/or
   • Enable the suspension or cancellation of the services being provided by the ISP in the event of a breach of the ISP’s Terms of Service, as long as any conditions to that end have been properly informed to the user.
7. A self-regulatory system implemented by an ISP will in no way be considered as a means to provide effective notice under the terms of the bill.

In sum, if this bill is passed, ISP liability will be considered under a standard of fault analysis instead of strict liability rule. This means that ISPs will be held liable for infringing third-party content only if they are required by the courts to remove or block certain content and they fail to do so in the given term. At the same time, ISPs will have no general obligation to monitor their platforms to detect any possible infringements.

It is worth noting that Senators Fellner and Pinedo had been submitting their own draft bills addressing ISP’s liability for many years, but none of their prior drafts received preliminary approval. This is the first time a bill addressing ISP liability has been reviewed and preliminarily approved by Congress.