consumer law. Consumer associations. Collective action. Application for injunction. Creating "Groups" on Internet sites promoting the school needed. Duty to control content involving minors where
Civil Defense Protective Association v. Consumer Facebook Inc
Civil Court, Trade and Mines Mendoza, Issue 2
Mendoza, May 11, 2010 .-
AUTOS AND SEEN:
I. - That fs. 22/33 presents DR. JOSE LUIS RAMON on behalf of PROTECTIVE CIVIL DEFENSE ASSOCIATION OF CONSUMER and promotes collective action which deals in the process of Amparo against INC FACEBOOK., Applying a precautionary measure.
understand that the revenues collected are common to these measures. Regarding the "prima bonis iuris" or presumption of petitioner's right true to the purpose of certifying the right claimed arises from the accompanying documentation.
added that the Association is accredited by the National Constitution through Articles 43 and Article 53 of the Consumer Protection Act to intervene in collective action.
On the other side understands that it is for his award under the provisions of art.3 and 37 of that Act.
As for the danger of further states that is evidenced by the press and film documentation of the site of the defendant, which has spread throughout the country to create groups that want to imitate what was done by groups Mendoza .
adds that follow will generate a social uproar both parents in the educational system, to see how the organization of groups exposed to be injured as children themselves, as other people that the group decides damage and the education system.
states that in response to collective action, which has no cost benefit of litigation exemption is requested to comply with the contracautela.
that by explaining the petition in particular argues that the evidentiary material along comes the shortcomings of the social network Facebook with the consequent potential for mass involvement marked, a circumstance that warrants the application of measures aimed at the cessation of , reverse or moderate the harmful consequences imminent.
says that being a constitutional obligation of the authorities provide for the protection of consumers and users, and at the slightest possibility of the existence of an injury to the rights of users as a whole, believe that it is necessary and appropriate that the order signed as an immediate preventive measure limiting the use of features of the site in response to possible signs of abuse, removal of inappropriate content, suspend or disable accounts violations and responsibilities to the clustering of children with no intentions of going to their school, and the due consent of their parents or school authority to meet at a specific site to celebrate the breach.
adds that the company must be revertir los efectos causados.
En consecuencia, solicita con carácter de medida preventiva que se ordene: 1) el cese inmediato de los grupos creados o a crearse por menores de edad, con el objeto de promover la falta al ciclo escolar, sin el debido consentimiento de sus padres o la autoridad escolar, para festejar dicho incumplimiento; como también hacer extensivo a posibles otros objetos donde los menores de edad promuevan objetivos que puedan causarse daño ellos o a terceros con su accionar.
Peticiona que la presente medida deberá tener efecto hasta tanto se demuestre el control de los contenidos de los grupos de menores de edad y su seguridad, in your case until this file exists on the final settlement.
2) Post at the expense of defending the restrictions to minors on the formation of groups for committing acts that affect their safety or that of third parties, requested such notice at least ten inches high and seven inches wide by two days, in the main newspapers of the Andes and one of the city of Mendoza, and in two newspapers of national coverage. Requests that the publication has certain information.
3) That for the purposes of enforcement of the measure respondent in paragraphs 1 and 2 must be formally accredited in cars within five working days, failing to forward copy of these actions to the Criminal Justice and subject to adopt coercive measures as appropriate.
offers based on evidence and law.
II .- fs.38 intervention is directed to Ms Minor Advisor.
III .- fs.39 Ms Minor Advisor takes less intervention by the MCB, requesting the birth certificate accompanying the child.
WHEREAS
I. - ORIGIN REQUIREMENTS PRECAUTIONARY MEASURE: In order to elucidate the origin of the action requested is necessary to enter into the analysis of the requirements of Art. 112 of the CPC.
The first of the quotes you mentioned is the likelihood of law.
prima For bonis juris, noted that it "must be understood as the probability that the right exists, not as an indisputable fact that success was exhausted at the process (CAM.ES Birth Civ, Room E, 01.07.1977, LL 1980, v. C., pg. 714). It happens that precautionary measures are justified by the fear of the frustration of the right or urgency, so contradictory is suppressed and only calls for checking the existence of copyright is made on an expedited basis, so that gives the likelihood of the same "protective cognition is limited to a trial of probabilities" (CAM.ES 2a., Room 2a., La Plata, 27.05.1980) .-
That in this vein, I believe that, without any assessment of the substance of the issues raised in the case, this requirement has been met and that the Association, under constitutional and Consumer Protection Act, has standing to sue on defending the right to physical and moral integrity of minors to the complaints made by parents on an event that has happened and so that the same recurrence.
This was held the doctrine, saying that "this is the plausible assumption by a summary knowledge of what is said is likely, or that demand appears destined for success" (DE EDUARDO LAZZARI N. Preventive Measures. Volume I. 2 ° edició. page 24).
However, the extent requested, must appease in the case are two rights collide. Freedom of expression and the physical and moral development of minors.
"Freedom of expression" is defined by the Declaration on the Rights of Man and Citizen of 1789 by saying "the free communication of views is one of the most precious rights of man and every citizen may speak, publish freely, except responsibility for the abuse of this freedom in the case determined by the law. "
On several occasions it was felt that this right has a front that is the individual duty of every one of us to receive and transmit ideas, and a back that is the collective right of the recipients of information.
Inter-American Court Human Rights Advisory Opinion of 13 November 1985 "Stephen Schmidt", establishes the doctrine that "when it restricts freedom of expression of an individual, not only the right of that individual that is being violated, but also ofall is the right to receive information and ideas. " He adds that "thus demonstrate the two dimensions of freedom of expression. Indeed it requires on the one hand that no one be arbitrarily limited or impeded in expressing his thoughts ... but it also implies, on the other hand, a collective right to receive any information and know the thoughts expressed by others. " All Once you get into our hands an article on freedom of the press is fully recognized that this right is essential to the republican form of government and the democratic system.
plenty of reasons to support that freedom of speech is and should be one of the freedoms of choice in a democratic state as in a priority order set the spirit of our organization, freedom of expression Republican ranks high among goods worthy of legal protection.
But the rights embodied in the Constitution are not absolute, but that are subject to reasonable regulation, the exercise of a right should keep harmony with the others. Neither the right to freedom of expression is absolute, for which although there is almost unanimous agreement in the sense of not exercising prior censorship, they have recognized other limits to that freedom such as the right to privacy , honor and reputation.
The Argentina Supreme Court was concerned to note that the right to free speech is not absolute and that entails responsibilities established by law for cases of abuse produced by the exercise thereof. This was established in 1918 in the case "Menendez v. Valdez" in "Ponzetti of Balbín c / Editorial Atántida SA "and for" Campillay "in which the High Court stated that" ... the right to freedom of expression and information is not absolute in terms of the responsibilities the legislature to determine because of the abuses committed by its exercise ... While the republican freedom of expression ... has a prominent place that requires particular caution as it is assigning responsibility for its development, we can say without hesitation that this does not translate in order to ensure the impunity of free expression.
social function today in our modern society meet networks, means that they must act with complete freedom, but the right of expression can not be extended at the expense of the necessary harmony with the other constitutional rights, among which are the moral integrity and security of people and especially children.
I believe, without any assessment of the substance of the issues raised in the case, the exercise of freedom of expression can not be extended at the expense of the necessary harmony of constitutional rights, among which is the integrity physical and moral people. The right to inform is not in itself a justification of damage to the spiritual and social integrity, but must be exercised regularly, without abuse or excess, but must of affected children.
Law 26,061 as the best interests of children requires more responsibility when the publication is intended to, liability arising from the art. 902 of C. Civil.
III .- The second of the budgets of origin, is the danger in delay, which is the legal interest to justify precautionary measures. There is a precautionary measure that is given to allay a fear of imminent harm, is to require that they prima facie, is that presumed by the circumstances of the case (Podetti, op. cit., pg. 57) .-
As noted Eduardo de Lazzari this budget "fails to be configured for the sole personal opinion of the claimant or his fear, apprehension, suspicion, pessimism or mere subjective appraisal must come from facts that can be appreciated in its possible consequences, even by third parties. This is motivated by rational order, authorizing think or believe in the feasibility of disruption (op. cit. Pg. 37). The periculum must be adequately tested, proving the reasons why it is necessary to grant court protection early.
In this sense the law has stated that "one of the specific budgets and proper precautionary measures, legal interest that justifies the danger in delay, but no need for full accreditation of its existence is required resulting in an objective, not just the simple fear of the applicant, but must derive from facts that can be appreciated, its potential consequences, even by third parties "(CNC, Room C, 26.06.1980, JA 1981, p . 477) and "The danger in delay is a common requirement of all precautionary measures can be said that is its raison d'être is legal and in fact, is inseparable from them. The judge should be slightly more severe in the evaluation of evidence to that end give up, that in referring to the prima facie justification of law "(2nd CC, LA 68-349) .-
The application of the principles set out in this case leads us to conclude that the danger would be established which would justify the delay in granting the requested action before the convening of another meeting of students and the extent of "rata Mendoza" to other groups and places, thus avoiding the creation of new groups that tend to damage the integrity of minors.
These calls have been public through the mass media.
regard our case law says: "How long you can delay the processing of the case, is not sufficient proof of this budget. All time-consuming processes. Is easy to understand that this argument is accepted, any trial should be taken by accredited, without more, the danger in delay. While demonstrating the danger of further allows of no limitation on the evidence, that "periculum" must be objective, ie, not a mere fear or apprehension of the applicant, but derived from facts that can be appreciated -In their possible consequences, even by third parties, may "exempli gratia" arise from the attitude of the respondent of his current behavior or possible future behavior can be seen even by signs, as normally happens when you run events that involve the voluntary reduction presumably bad faith of the debtor's estate, and cars have been warned not actually see any way this requirement, where if the danger in delay is alleged to be merely conjectural, the requested injunction is inappropriate. Grounds, without prejudice to the possibility of repeat order for it is decreed, however, provided consideration is made based, innovative and relevant to disclose the origin the supplication "(File: 24475 - IRMA GLADYS ZUAZQUITA GASSIBE Edaurdo NESTOR STAR ARREST Location: LA150 - Fs.028CUARTA CAMERA IN CIVIL - First District JUDIAL)"
I believe that the danger in delay is credited as the passage of time since the commencement of this action until the resolution of it would render illusory the protection of consumers who tend to comply with the plaintiff.
If the test to give up, eventually emerged the existence of this impairment in personal rights recognized by our Constitution, impossible to remedy the harm caused to you.
IV .- CLAIM OF THE PLAINTIFF
The plaintiff, require the immediate cessation of the groups has created or established by minors, in order to promote failure at school without the due consent of their parents or school authority, to meet at a specific site in order to celebrate such failure, as well as to extend to any other object where minors, to promote objectives that can be hurting themselves or others through their actions to therefore demonstrate the control of the contents of groups of children and their safety or if necessary, until there is in this case a final decision (art. 42 Const. Nac, arts. 5 and ccs. Law 24 240). As requested, the undersigned understands, it is appropriate and appears as practically possible, given that Facebook says reserve the right to apply special methods of protection for children (to provide an age-appropriate content), and uses automated and social measures to increase security, limit the use of features of the site in response to signs of abuse, remove inappropriate content or links to illegal content (http://www.facebook.com/policy.php).
But the undersigned is a limited jurisdiction, preventing the implementation of the resolution outside the provincial level so that the measure should be given about the contents to be viewed in the Province of Mendoza or uploaded and / or directed at children who are in it.
This territorial limitation in turn arises the question of jurisdiction, under the provisions of the National Court, in the case "Raw v. SA and PSA USSA s / amparo." The National Court held that federal jurisdiction was for the province and not, as Ms Judge had held the owner of Twenty Civil Court of Mendoza, as the dissemination of the images went beyond the local level. Specifically, the Attorney General's Office said: "It is clear that the purpose of the claim is directed to ensure the protection of children against child prostitution and use via the Internet, trained in international agreements like the Convention on the Rights of Children and the Protocol on the Sale of Children, Child Prostitution and the Use of Child Pornography, adopted by Law 25,763, federal nature instruments. In addition, referring to action activities to be carried out through the Internet, through global networking allowing extra natural local actions, it is concluded that falls to the federal courts find in this protection (See VE Case December 23, 2004, and appointments, SC Comp. No. 637, L. XL, in cars, "Belgrano Neighborhood Association c / Manuel Belgrano s / as autosatisfactiva ").
turn, as well as Norberto Novellino said, in his "Arrest and replevin and other precautionary measures", p.54: ".... Is for the judge to rule on the viability or otherwise of injunction without prejudice to the timely be resolved on its jurisdiction, if applicable ..... ", and the imminence of the next call to the 14th of May, issued for the subscriber on the measure and then, informing the public prosecutor in order to rule on the competition.
Regarding the request to publish at their expense and by the restrictions placed on minors on the formation of groups for committing acts that affect their safety or that of others in ads such as "required" This appears to be overabundant, given the information provided by the site to accept the terms of use, and the request is appropriate only as the art. 1071
bis adequate reparation.
As to request that the enforcement of the measure is established, failing to transmit a certified copy to the Criminal Justice, such warning is also overflowing since in case of failure to comply with the measure governing the provisions of art. 239 of the Penal Code, rules of public policy and is said to be known.
V. - CONTRACAUTELA
respect to inc. Article III above, the presenter argues that aware of the characteristics of collective action, which has no cost benefit of litigation, seeking relief from complying with the contracautela.
However, Court repeatedly holds that free benefit arising from the litigation without charges does not exonerate the provision of a contracautela in cases of provisional measures.
regard the Court has said: "The applicant for the benefit of litigation at no cost to file is not released from the lock contracautela asking the injunction. Is that the bond as a condition of eligibility for relief, specifically the principle of equality, and to offset the absence of initial conflict, ensuring the right actor has not yet acted, and the defendant the effectiveness of the recovery of damages if that right is not exist or not have been updated, thus maintaining the balance that the court should seek to protect the interests of both partes.136210 - Bortolin LOPEZ, DELIA - Maria Sanchez ARREST AND NEW GENERATION Date: 01/07/1997 - AUTOTribunal: SECOND CHAMBER CIVIL - First District . Judges: VARELA de Roure - CASE.
"The contracautela tends to be affected by a precautionary measure cash compensation for the damage they have suffered if the right claimed did not exist. As the budget contracautela a precautionary measure, it should become required for delivery. If that was not done so, should be peremptorily deploy who got it for granted that, failing to lift without trámite.73584 - GENERAL COOPERATIVE MOSCONI LTDA. - CARMELO AND JORGE BOTTLES MEASURE SRL PRECAUTORIAFecha: 06/08/1997 - AUTOTribunal: SECOND CHAMBER CIVIL - First District Judges: CASE - Marzari CESPEDES Location: LA082 - 440.
In order to comply with the measure ordered the plaintiff Association recognizance shall provide professionals involved in this process.
the foregoing and applicable standards cited as admitting respondent therefore RESOLVE:
1) Make room in part to the precautionary measure requested under the sole responsibility of the plaintiff and therefore, order FACEBOOK INC: immediate cessation of the groups created or created by children, for contents that are seen in Mendoza Province or received and / or targeting children who are in it, in order to promote failure at school without the proper consent of their parents or school authority, to meet at a specific site to celebrate the failure, as well as to extend to any other object where minors promote objectives that can be hurting themselves or others through their actions, and to enforce the control of content groups of children and their safety, as what is stated in the conditions published in http://www.facebook.com/policy.php until this file exists on the final settlement.
2) Prior to the implementation of the measure, surrender recognizance of the professionals involved.
3) Paying attention to the domicile of the defendant reported to fs.22, get rid 22,172 law office to the competent civil court to enforce the measure ordered.
4) presents notified to Mrs. Minor Advisor, referring to cars.
5) Notified of this action, give sight to the Public Prosecutor in order to be issued on competition.
IMPLEMENTED. NOTIFY Signed: Dr. Alfredo Dantiacq Sanchez - Judge
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