Around the world, intermediary liability rules are coming under close scrutiny. But what makes the Latin American context unique is that, unlike the United States and Europe, there are no settled rules governing the platforms’ legal responsibility for the content they host.
No Latin American country has passed legislation providing online intermediaries, such as Facebook, Google and Twitter, with blanket immunity analogous to the Section 230 of the U.S. Communications Decency Act. Moreover, a general law regarding intermediary liability is absent in most jurisdictions, with the exception of Brazil’s Marco Civil of the Internet approved in 2014. Nevertheless, several bills have been introduced in the Parliaments of Argentina, Colombia and Uruguay, and some are still under discussion.
Still, with over 292 and 118 million users of social media in South America and Central America, respectively, legal controversies have arisen and the legislative void has been filled by courts and administrative bodies. Landmark decisions like Belen Rodriguez in Argentina, JWFC v. Google in Colombia, and Fuentes v. Entel in Chile, show a tendency to allow intermediary liability in very exceptional cases where a digital platform is aware of the illegality of the content posted by third parties. The general rule remains that intermediaries are not responsible for third party content, however it greatly differs from the U.S. Section 230 immunity and its broad interpretations, starting with Zeran.
The courts have turned to classic civil law rules (responsabilidad extracontractual) to rule on several defamation lawsuits and cases related to invasion of privacy. However, in recent years plaintiffs have shifted their strategy towards more readily applicable consumer protection laws, which are ubiquitous across South America.
For instance, the former president and current vice-president of Argentina, Cristina Fernandez, has started legal action against Google for publishing search results which included a statement that she is a ‘thief’ in the Knowledge Panel under her name. One of the most intriguing features of the brief filed to the judiciary is the claim of an infringement of Argentinian Consumer Protection Law. Colombian and Peruvian consumer protection authorities have conducted investigations against e-commerce intermediaries, for failing to act in accordance with their own terms of service. Argentinian and Peruvian authorities have even declared the unenforceability of some liability release clauses provided by these platform’s terms of service since they were deemed ‘unfair’. Peru and Colombia also have specialized data protection agencies and have conducted investigations against Google and Facebook, respectively.
It would not be surprising if the consumer protection agencies, at some point, decide to investigate whether social media intermediaries are abiding by their own terms of service when deciding what content remains on their platforms and what content gets removed or shadow banned. Furthermore, these administrative bodies might be pushed into that path by politicians who start to listen to users’ complaints, and might even find themselves on the adverse side of an unsatisfactory moderation decision.
To be sure, consumer protection laws may fall short of fully grasping all corners of a complex matter such as intermediary liability. In addition, Latin American consumer protection bodies may be problematic agents of accountability because they are not sufficiently shielded from political interference. But in a context with little market competition and no blanket immunity for online intermediaries, one could expect that consumers and authorities would try to make good on social media’s promises and try and enforce compliance with their own rules of content moderation.
Tech giants, for the most part, have avoided entering into a conversation with Latin American authorities about these issues. A look into these platforms’ legal strategies in some of the aforementioned cases shows a pattern of rejecting the countries’ jurisdiction and resorting to a purported general immunity regarding their moderation (or lack thereof) of third-party content.
But sitting now at the table could be a little too late. Latin American consumers might find it difficult to accept some kind of immunity for digital platforms’ content moderation inasmuch as the former feel they already have a legal right to make those companies deliver on the promises they made.
Andres Calderon is a Law Professor and Head of the Legal Clinic for the Defense of Freedom of Information and Transparency at Universidad del Pacifico (Peru).
This article was developed as part of a series of papers by the Wikimedia/Yale Law School Initiative on Intermediaries and Information to capture perspectives on the global impacts of online platforms’ content moderation decisions. You can read all of the articles in the series on their blog, or on their Twitter feed @YaleISP_WIII.