On 22 June 1986, Argentinean football star Diego Maradona scored a goal in the quarter-final match of the 1986 World Cup between England and Argentina. However, the goal was an illegal handball (known as the ‘‘Hand of God goal’) which went unpenalised, leading to England’s 2-1 defeat. The Hand of God (not to mention the owner of the arm) earned the undying enmity of English football supporters.
Some 22 years later, Maradona is at it again. In November 2008, Maradona obtained an court order in Argentina which effectively caused Yahoo! Argentina to remove Maradona from any search results and Google Argentina to massively reduce the number of results obtained when using ‘Maradona’ as a search term. The Hand of God has struck again. This article briefly examines how and why.
More than just the hand
In fairness to Maradona, he did not start the attacks on Argentinean search engines, nor will he be the last public figure to succeed in doing so. Over the last two years, Martin Leguizamon Peña, a 48-year-old lawyer based in Buenos Aires, has represented approximately 110 high-profile clients in a bid to remove them from the Internet (at least in Argentina). His client list consists mainly of celebrities (actors and models) but also includes some judges; high-profile judge Maria Servini de Cubria, although a public official, now has an injunction in her favour filtering what the Argentinean public can read about her online.
How does Peña do it?
Peña’s technique involves suing the search engines for damages (usually for between 100,000 and 400,000 pesos –equivalent to $30,000-$120,000) claiming that the search engines are showing defamatory and scandalous pages relating to his clients. The claims usually come about because of truly defamatory stories on the Web (to which the search engines point) or because someone has stuck the head of a celebrity onto a pornographic picture (at least that’s the celebrity’s story!) – again to which the search engines point.
None of the underlying cases have come to trial but, in the interim, Peña has persuaded the Argentinean courts to issue injunctions restricting search engines from showing defamatory or scandalous pages relating to his clients. The problem is that the formulation of the injunctions is so wide that it is practically impossible for search engines to check each link their search algorithms point to – and, even if they could, it would not necessarily be apparent if an article/photo was ‘defamatory’ and/or ‘scandalous’.
What is the practical effect?
It is, for example, practically impossible for Yahoo! Argentina to expend resources checking the nature of each individual search result (even should it want to do so, which it does not). Accordingly, to comply with the injunction, the search engine has removed almost every search reference to Maradona (a search on whom otherwise results in 3.5 million hits). Instead, a notice in Spanish proclaims that:
‘Con motivo de una orden judicial solicitada por partes privadas, nos hemos visto obligados a suprimir temporalmente todos o algunos de los resultados relacionados con ésta búsqueda’
In other words: ‘Due to of a court order sought by private parties, we are obliged to temporarily remove some or all results related to this search.’
Some results from the major news sites, such as the BBC, do remain, as the search engines have calculated that such major bastions of the Internet will not have defamatory or scandalous pages relating to Peña’s clients. Google has not cut out all results in the same way as Yahoo! but it has filtered those results and reduced the number of results available.
Amazingly, Peña claims he has an 80% success rate in obtaining these injunctions, although anyone wanting to carry out a ‘banned’ search can of course visit the international (or other country) versions of Yahoo! and Google which still display unfiltered results.
Legal issues
From a legal perspective, the search engines are concerned (and rightly so) that the Argentinean court rulings effectively hold them responsible for the content of web sites turned up in their searches. This is the first time anyone has been forced by the courts to filter searches rather than filter the underlying content of documents turned up by results.
In the US and in Europe, it has long been accepted that search engines are not liable for the content they point to – they are not publishers of the content. For example, in England, the Electronic Commerce (EC Directive) Regulations 2002 implement the EU’s E-commerce Directive into English law. Under these laws, an information service provider (which a search engine certainly is) which complies with the Regulations is generally not liable for any material where it acts as a mere conduit, caches the material or hosts the material. Also, the E-commerce Directive states that Member States must not impose a general obligation on service providers to monitor the information which they transmit or store. It is normally accepted that if they do monitor content on servers then they are at greater risk as they will then be treated as a publisher of that information.
The same does not appear to be true under Argentinean law. Argentina has a gap in its law, which means Argentina is open to the accusation that it is censoring the Internet. Argentina has no US or European style law holding publishers responsible for content (ie the underlying Web sites pointed to) rather than search engines pointing to that content – and while that gap exists, it leaves the Argentinean sector of the Internet effectively unworkable. In fact, Google compares the Peña actions to suing a newsstand for the contents of newspapers.
As to whether the Hand of God (Maradona) wins out in the long term over the Hand of Google – at least in Argentina – watch this space!
Mark Weston is a Partner at Matthew Arnold & Baldwin and Head of the Commercial/IP/IT Department there. He is also Chair of the SCL’s North London and Home Counties Group.
