on intermediary liability
The Federal Congress of Argentina is currently debating a new law on intermediary liability, which would establish a safe harbor of protection for Internet intermediaries (such as ISPs, social media platforms, and search engines) from liability for content uploaded or transmitted by third parties. For the most part, the law closely follows the recommendations that EFF and over 100 other organizations make in our Manila Principles on Intermediary Liability.
The effect of this law is that ISPs and platforms in Argentina will no longer face the threat of immediate legal liability when a user or other third party creates or shares content that someone else complains about. Why is this important? Because if they do face such liability, the very first thing that a platform is inclined to do when receiving such a complaint is to block or take down that content, and perhaps to suspend or terminate the account of the user who uploaded it. When platforms face liability for user content, it also gives them a legal incentive to closely monitor the behavior of their users online, placing user privacy at risk.
The law proposed in Argentina would fix both of these problems. For the first time, the law specifies (in Article 4) that Internet intermediaries are not liable for third party content, unless they fail to comply with a court order for its blocking or removal. It also specifies (in Article 5) that they are under no duty to proactively monitor content created by third parties, in order to identify or prevent infringements of the law.
But that doesn't mean that intermediaries have no responsibilities at all. Article 6 of the law allows a court to grant a preliminary injunction requiring the removal, blocking, suspension of disabling of access to content until a final determination about the legality of that content can be made. The law also specifies (in Article 7) that intermediaries may create their own self-regulatory mechanisms for removal and blocking of content, or for the suspension of cancellation of services.
We are a little concerned that these latter provisions do not explicitly spell out the protections that we would like to see to guard against the abuse of such takedown, blocking and suspension procedures. For example, the Manila Principles specify that intermediaries need to be transparent about the removal of content and provide the user whose content was removed with a way to have that decision reviewed. This applies even when the content removal is done voluntarily rather than under compulsion of law.
Safe Harbors Under Threat from the Copyright Lobby
The passage of the law isn't yet a done deal, though. It faces a threat from Argentina's copyright lobby, who have been lobbying lawmakers and placing press advertisements to ask for stricter provisions on the removal of copyright content. To explain why, it's useful to consider how Argentina's law would differ from the law in the U.S. In the United States, intermediary liability is dealt with as a provision of two separate laws, which we know as DMCA 512, and Section 230 (or "CDA 230"). The former (section 512 of the Digital Millennium Copyright Act) only relates to liability under copyright law, and the latter (47 U.S.C. § 230) for other grounds of liability, such as defamation, breach of privacy, and so on.
The reason for this split is that copyright owners receive more favorable treatment under U.S. law than other claimants do. In particular, platforms only receive safe harbor protection if they take content down when receiving a DMCA notice in a prescribed form, and that notice doesn't have to be vetted by a judge. As a result, it's extremely common for platforms to receive DMCA notices that are misleading, overreaching, or flat-out wrong, including notices that are intended to suppress political speech rather than as a legitimate complaint of copyright infringement.
Argentina's law, which deals with the liability for both copyright content and other types of content in a unified way, is a different approach. Outside of the voluntary measures allowed by Article 7, it would require a court order before platforms would have to take down content for alleged copyright infringement. Copyright holders aren't happy about that, but it does makes sense. There is nothing inherent in copyright-infringing content that requires it to be treated any differently from other types of unlawful content, and Argentina has not entered into any bilateral agreements with the United States that would require it to adopt a DMCA-style system.
On the contrary, Argentina would be in good company within the region by requiring a judicial assessment of copyright takedown requests. Chile, whose legal system has many similarities with Argentina, tenaciously (and successfully) held out for the recognition of its own judicial copyright takedown system when negotiating the Trans-Pacific Partnership (TPP) with the United States (though in the end the U.S. withdrew from the TPP and that particular provision of the agreement was suspended anyway). Requiring a court order before platforms are required to take down content for copyright infringement is a key recommendation of the Manila Principles, and is just as appropriate for Argentina to adopt as it was for Chile.
Although there are some provisions of the bill that we would have written differently, overall this law will set a positive standard of intermediary liability protection for the region, in which several other countries lack clear laws in this area. Argentina's law on intermediary liability deserves to pass the Federal Congress without being watered down big content lobbying.