Law Addressing ISPs' Liability: Preliminary Senate Approval

Author:Mr Diego Fernandez
Profession:Marval O'Farrell & Mairal

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 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:

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. Content is defined as any digitalized information available through the Internet. 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. ISPs do not have a general obligation to monitor content generated by third parties. Any person is entitled to commence a lawsuit with 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...

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