Argentinean Judge Orders Yahoo! and Google to Control Information

In Argentina, Google and Yahoo! have blocked the results of several searches on famous people, in response to an injunction from an Argentinean judge. Several lawsuits from athletes, entertainers, and political figures have led to a judicial order to block defamatory and pornographic search results. While the order did not target all search results on these particular celebrities, Yahoo! Argentina found the order so broad that it was not an option to block results on a site-by-site basis. In contrast to Yahoo! Argentina, searches on Google Argentina will still reveal millions of hits, with Google offering to cooperate with requests to block specific websites.

Obviously, this raises concerns about freedom of speech. OpenNet has criticized the move as censorship, comparing it to other jurisdictions that have restricted certain websites:

In a few cases, the firms have been fined for not sufficiently complying with some of the courts’ censorship demands. This is not the first time that a judge or government has tried to filter the Internet in an ill-considered way, an approach that is in the same stroke both disproportionately over-broad and ineffective. Recent examples of similar missteps include the blocking of scientist Richard Dawkins web site in Turkey and a US judge’s order to shutter

Argentinean law has gone beyond targeting specific kinds of content, and effectively targets intermediaries. These major search engines were held responsible for simply posting a link to content that was posted by others. There are concerns that this could chip away at the legal shield for various web services, holding them responsible for virtually independent content creators. But it is unlikely for this kind of ruling to happen in the U.S. or Canada, where search engines have been cleared of such responsibility. A recent ruling from the British Columbia Supreme Court found that merely posting a hyperlink could not constitute re-publication of content. In that case, posting a link to defamatory information was not considered defamation in of itself.

Of course, there are real concerns about the spread of dangerous information on the Internet, and the potential for hyperlinks to aid that spread. Websites ignore international boundaries. Even if certain web content is illegal in one jurisdiction, users may seek websites that are legally hosted in other jurisdictions. In order to effectively deal with hate speech or child pornography, it may become necessary to target mere hyperlinks. For example, Germany has restricted searches for neo-Nazi material. But dealing with the defamation of famous persons is more challenging, partially because there are so many defenses to publishing defamatory material, including a good faith belief that the material was a factual report. Targeting links to defamatory content would either be so harsh as to chill free speech, or would be too cautious and would permit defamatory material to spread too easily.

Even if we accept that Argentina’s strategy of blocking search results is justifiable, OpenNet explains the practical limits of such an approach:

Internet users in Argentina who know about the censorship are free to use many of Yahoo!’s other Spanish-language search sites, for example, Yahoo! Mexico or Yahoo! Spain. Even those users unaware of the censorship are likely to seek out other search engines, such as Google, once they come across a search page with zero results. Poor typists are also in luck, as Yahoo! has clearly implemented the orders narrowly, not removing results for “diegomaradona” or “diego maradone,” for example.

For better or for worse, the Internet is a stubbornly free market of information. Yes, governments may be tempted to impose restrictions on major search engines, and deputize these companies as gatekeepers. But users will become frustrated with restrictive gatekeepers and seek out alternative sites that are more accommodating. It is not hard to imagine an alternative service becoming popular enough that government imposes restrictions on it too. But at best, this just creates an endless cycle of users moving from one service to another. At worst, this chases all links to the content out of the jurisdiction.