Net Neutrality and Intermediary Liability in Argentina

Eduardo Bertoni

This essay first appeared in the Internet Monitor project’s second annual report, Internet Monitor 2014: Reflections on the Digital World. The report, published by the Berkman Center for Internet & Society, is a collection of roughly three dozen short contributions that highlight and discuss some of the most compelling events and trends in the digitally networked environment over the past year.

Should all data be treated equally? Are communications platforms liable for their users’ online activities? These two questions are at the heart of the current debates unfolding in Argentina related to net neutrality and intermediary liability, and their resolution will have far-reaching implications for user rights.

Many consider net neutrality to be guaranteed under Argentina’s current web standards, specifically Decree 764/2000 establishing non-discrimination among service providers and Resolution 05/2013, which dictates that service providers may not arbitrarily interfere in users’ access to online content. Others believe these standards could go further: the Center for Studies on Freedom of Expression and Access to Information (CELE) has been advocating for a legal reform that would unequivocally guarantee net neutrality and the associated rights to unhindered digital access. Over the past year, the Senate’s Commission on Systems, Media, and Liberty of Expression has been working on draft legislation related to net neutrality and Internet rights, to which CELE and other members of civil society have been contributing. The Commission has taken the important step of soliciting feedback from diverse sectors that would be affected by the law under discussion, but the latest version nevertheless includes components that would undermine its stated commitment to neutrality.

For example, the draft proposes that the principle of neutrality apply only to “legal” content, applications, and services. Such a proposal implies a tricky negotiation of legality in terms of both scope and substance, and leaves unresolved which stakeholders would have the authority to establish the parameters of legality. Without clear guidelines on responsibility for determining legality, private sector companies that offer online services could have considerable leeway to block or filter content. Bestowing private sector companies, such as Internet service providers, with the power to censor content on the grounds of its legality risks impeding the exercise of fundamental information rights.

The draft bill also submits that certain “special services” — as yet unspecified — would be exempt from the principle of neutrality. The ongoing debates on net neutrality underway in the United States, the European Union, and elsewhere have underscored the complexity of the concept of “special services” and affirm that its inclusion in any legislative measure merits an in-depth discussion. The main recurrent problem related to special services is that there is not yet an agreed-upon definition of which services fall under this designation.

Lawmakers have also been mulling over legislative projects related to intermediary liability, which is not currently regulated in Argentina. This means that in rulings involving an intermediary — an Internet service provider, search engine, or platform — judges may invoke whatever norms they deem applicable to the case when considering whether or not the intermediary is accountable for the content. The complexity of intermediary liability has been put on display in Argentina in cases of high-profile public figures seeking the removal of undesirable online content; recently an Argentine model sued Google and Yahoo in “Rodríguez, María Belén c/ Google Inc s/ daños y perjuicios” for damages after pictures of her were linked to websites with sexual content. This case is pending before the Argentinean Supreme Court. In this and other cases under review, courts are charged with determining the responsibility of information gatekeepers such as these search engines. Given the specificity and range of cases that directly implicate the issue of intermediary liability, there is an urgent need for Argentina to legislate this issue without imperiling free expression.

The discussions surrounding net neutrality and intermediary liability signal that we, as users of Internet-based platforms and applications, are in the midst of a moment that may mark a fundamental shift in our technological lives. In Argentina, there is still time to avoid enacting into law errors that would privilege a small few at the expense of many.

Sophia Sadinsky, Princeton in Latin America Fellow at the Center for Studies on Freedom of Expression and Access to Information (CELE), contributed to this report.