TMT (Telecommunications, Media & Technology) Department report | Marketplace released from liability for the sale of a plagiarized book on its platform
Ruling “Iglesia Mesiánica Mundial Sekai Kyusei Kyo en la Argentina v. Mercado Libre S.A. and Others re. Intellectual Property Law No. 11,723” (File N° 64627/2007) Division M of the Civil National Chamber of Appeals
Dear Sir or Madam,
On March 28, 2022, Chamber M of the National Chamber of Civil Appeals upheld the first instance judgment in the case “Iglesia Mesiánica Mundial Sekai Kyusei Kyo en la Argentina (“IMM”) v. Mercado Libre S.A. (“ML”) and Others re. Intellectual Property Law No. 11,723” (File N° 64627/2007), admitting the claim for plagiarism filed by IMM against Luis Ernesto Ferrari, who had infringed the intellectual property rights of the former on the book “Cimientos del Paraíso”, and exempting ML, a very well-known Marketplace in Latin America, from liability for the promotion and sale of a plagiarized book on its platform.
To this end, the Court began by pointing out that in our country we do not have a specific regulatory regime governing the liability of an e-commerce platform, and that there was neither a contract nor a consumer relationship between IMM and ML that would allow the matter to fall under the scope of the Consumer Protection Law. Therefore, it considered that the issue had to be resolved within the orbit of tort liability.
With this point of view, it concluded that the platform cannot be obliged to monitor contents in a generalized manner in search of infringements to third parties’ rights and that, being a case of negligence based liability, ML could have been held liable if it had taken actual knowledge of the unlawful nature of the offer, or if, after having acquired such knowledge, it had not acted with the required diligence to remove the publication.
However, and according to the evidence produced, the Court concluded that there was no doubt that ML’s role was only limited to hosting on its website an offer to sell the book in question, and that in view of the injunction ordered by the court for the defendant to refrain from selling copies of the book, which was brought to ML’s attention, the latter complied with the measure.
The Court then understood that ML had assumed a neutral and passive position, which prevented it from being obliged to have prior actual knowledge of the plagiarism of the published work and that, no matter how much diligence was required of it, there was no reasonable way to know of the unlawfulness.
In conclusion, Court M of the National Civil Court of Appeals dismissed the plaintiff’s claims and confirmed the appealed judgment.
To access the full text of the ruling, click on the following link: “Iglesia Mesiánica Mundial Sekai Kyusei Kyo en la Argentina v. Mercado Libre S.A. and Others re. Intellectual Property Law No. 11,723” (available only in Spanish).
Should you require any further information on this matter, please do not hesitate to contact us.
Emilio Beccar Varela