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S. Court: must search engines be regulated?

Chief Justice Ricardo Lorenzetti (centre) sits alongside justices Elena Highton de Nolasco and Enrique Petracchi during yesterday’s hearing.
By Luciana Bertoia
Herald Staff

The country’s top justices begin listening to experts in key case for future of the Internet

When the Supreme Court justices went to law school, they likely used typewriters. Yesterday, they faced a thoroughly modern quandry as they held a public hearing to discuss the responsibility of search engines in a case involving a fashion model who accuses Yahoo and Google of linking her name to pornographic websites.

“This is a very relevant issue as it combines the Internet, freedom of expression and privacy,” Supreme Court Chief Justice Ricardo Lorenzetti explained before the amici curiae, as those who presented themselves as the court advisers on the issue are known, delivered their opinions.

It marked the first major challenge for the justices since the death of Justice Carmen Argibay earlier this month.

Eight experts were summoned by the court to deliver their opinions yesterday in the case that saw divided opinions between those who want more stringent regulations for the Internet and those who oppose that possibility.

Laura Alejandra Calógero, a member of the Bar Association of the Capital City, considered that any regulation to Internet means censorship.

“Our Constitution prevents prior censorship,” Calógero said. “The person who publishes something offensive can be hold accountable but not in advance.”

Search engines, however, are not publishers. In fact, the question that the Supreme Court will have to answer is whether these websites that index the web can be blamed for what third parties have published.

As the Herald’s Marcelo García explained last week, the European Court has determined that search engines are responsible for processing the personal data that then appears on third-party Web pages.

“While the European Court praises the right to forget, we praise the right to remember,” Juan Vicente Solá, head of the University of Buenos Aires’ Centre of Legal and Economic Studies, said.

A MIXED MODEL

The person charged with speaking in favour of regulating the Internet was Horacio Granero, head of the Technology committee of the Buenos Aires City’s Bar Association. For Granero, the Internet is a “risky service.”

Eduardo Molina Quiroga, an expert from the UBA Law School, said that regulation might be necessary for search engines. But the question was who has the right to regulate content. For Molina Quiroga, that right cannot be given to private companies. In fact, he claimed that the regulation should be carried out by the state authorities.

For his part, Andrés Gil Domínguez suggested implementing a system that makes both search engines and courts responsible for the regulation. As the legal expert explained to the Herald, the user would first have to file a complaint before the company, explaining why he or she found some links offensive and asking search engines to block them — not delete them. If the user does not find a favourable response, he could file a legal complaint before a court.

“The idea is to make search engines take responsibility,” Gil Domínguez added.

The discussion is far from over. The country’s highest court will be holding another public hearing on May 29, when fashion model María Belén Rodríguez’s lawyer and those representing Google and Yahoo, the two search engines accused by Rodríguez, will come face to face and they will have to answer questions from the head of the Supreme Court, as it happened last year during the two public hearings held to discuss the 2009 Broadcast Media Law before the country’s highest tribunal declared it constitutional.

Alongside Lorenzetti in the fourth floor of the Palace of Justice were three of his colleagues: Deputy Chief Justice Elena Highton de Nolasco and justices Juan Carlos Maqueda and Enrique Petracchi. Justice Eugenio Zaffaroni is abroad and will not come back to the country until August. The absence of 96-year-old Carlos Fayt’s absence was expected.

The case

In 2006, Rodríguez filed a complaint against Yahoo and Google for linking her name with porn websites, explaining that the situation affected her career and her personal life. A first instance court agreed with her and sentenced the two companies to pay 120,000 pesos to the fashion model.

However, an appeals court overturned the ruling and said that the links should not be removed.

Prosecutor Laura Monti issued her opinion before the court, saying that search engines cannot take responsibility for the websites included in their lists.

As happened with previous public hearings — such as the ones for the Broadcasting Media Law — the court will be setting a precedent, though its final ruling can be delayed.

@lucianabertoia

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