Judge rejects strict liability for online intermediaries
In a ruling of first instance dated February 15, 2016 in a case where the plaintiff had filed a complaint against the web site DeMotores.com, the judge rejected strict liability in the case of online intermediaries. DeMotores is a web platform dedicated to connecting people selling and buying used and new cars.
The plaintiff bought a stolen car through the web platform that had fake documentation, and in consequence claimed the website was liable and had to pay the corresponding damages.
Defendant DeMotores.com based its defense on the claim that it was not an intermediary in the transactions between the parties involved, as its main function was limited to publishing ads on behalf of those interested in selling a car, which could be seen for those interested in buying a car. DeMotores did not charge any commission on the transaction but only a fix fee for publishing the ad of the seller. In the present case, the judge analyzed whether or not the defendant had an active role in the commercial transaction actively participating in the selling operation or if it just had served as a classified ad and the communication between the parties was external, including the closing of the transaction.
The judge applied a case law dated October 28, 2014, decided by the Supreme Court in “Rodríguez Maria Belén c. Google s. daños y perjuicios” that created a judicial standard that could be followed in similar cases.
The Supreme Court rejected the application of an objective and automatic standard of liability on online search engines due to the fact that they do not create the illicit content.
Following this holding, the judge of this new case considered that the same standard was applicable to the other web intermediaries, not only to engines such as Google.
The first instance judge ruled that DeMotores.com could be guilty if the plaintiff were to prove the active participation and effective knowledge of the illegal transaction (fault or fraud), which did not apply in this case. Only under these conditions should web sites be declared responsible for the damages caused as a result of sales in their platforms involving fake products.