UBER in Argentina: Pandora´s box of legal nonsense
by Paula Vargas
The arrival of UBER to Buenos Aires city opened the Pandoras´box, unleashing all and every possible wrongful legal criteria (along with crazy and probably criminal conducts from taxi drivers and owners).
Incredibly, the three powers of the Government were involved in the debate. The President expressed his support to cab drivers, involving himself on a local level debate; the President of the Communications Commission at the House of Representatives introduced a Bill in order to ban UBER, an of course, the City of Buenos Aires Judiciary was very active trying to prevent UBER from offering its service, even searching UBER´s lawyers´ offices. All of them were incapable of distinguishing Internet content from services in the physical world and who is who when offering those services, creating an unnecessary legal ordeal.
The argument behind the different judicial orders issued was always the endangerment of passengers´ health and safety, along with taxes collection.
Unions of drivers and taxi´s owners filed a lawsuit against UBER and the City of Buenos Aires for allowing the service, and as a result an injunction was granted ordering the City of Buenos Aires to take any necessary action to block the circulation of UBER´s cars. However, it rejected blocking the App, considering such a measure as “unconducive, lacking of argments and for possibly invading other jurisdictions powers”. In order to grant the injunction, the Judge did not analyze whether UBER was actually a transport company-it assume it is- or whether the taxis regime was even applicable –public utilities regimes are not applicable by analogy-. But at least it was cautious enough to not blocking the app. Of course it did not bother to mention free speech as a competing right, so the result was correct but the legal reasoning behind was wrong.
Probably because not blocking the App made enforcement difficult –which is clearly a different side of the problem- a City of Buenos Aires prosecutor issued an injunction ordering ENACOM (Argentina´s FCC) to block the App, so finally the criminal system was activated. To my knowledge, ENACOM rejected complying with the injunction arguing that a City of Buenos Aires´ prosecutor was not a competent authority to order such a measure. Of course, a criminal judge was readily available to sort the obstacle.
On April 22, a City of Buenos Aires criminal judge ordered ENACOM to block UBER within City of Buenos Aires jurisdictional limits. It is not clear whether ENACOM, a federal agency, will comply with a City of Buenos Aires order. Content circulation through communications networks is a federal matter in Argentina and it is not under local government jurisdiction.
Finally, crowning the nonsense, on what I consider not only wrongful but a very dangerous decision, the Consumers Protection Agency of the City of Buenos Aires (an administrative agency) issued an administrative injunction (DI-2016-1313-DGDYPC) ordering the telecommunications companies to block the App and credit card companies to block any transaction related to the App. Therefore, the injunction was not issued against UBER but against telcos and credit cards as “contributors” to an –allegedly- harmful activity.
Multiple constitutional rights were abhorred with this decision, such as freedom of speech, freedom to practice a legal industry, property rights, right to due process and to a competent judge. But what strikes me as the most dangerous reasoning is the “contributory” argument. Secondary liability does not exist in Argentina´s legal regime, it is not a cause of action. According to civil law and procedure, a person or entity can be found liable for a third party´s activities under several legal grounds, but not “contribution”. Moreover, a local administrative agency ordering Internet content blocking violates all the standards established by the IASHR Special Rapporteur on Freedom of Expression who clearly requires judicial order or at least an agency with jurisdictional powers over content (if such a thing could ever exist). Blocking UBER might be seen as prior censorship regarding all the consumers that did not have access to the app yet.
The blocking of credit cards payments to UBER was ratified by a City of Buenos Aires judge.
The saga has not ended yet and UBER has a long way to go, despite clear preferences of consumers that were not attended.
In the meanwhile, a new telecommunications law is being drafted. It would be desirable that the new regulation would not only embrace the permissionless innovation principle, clearly preserving content circulation, but also would be used as a tool to prevent Pandora´s kind of legal nonsense regarding the Internet.