The influence of social networks in contemporary societies is undeniable: they disseminate information, connect people, link interests, amplify trends, and so on. Legislation is often late to regulate technological advances and social transformations. In recent years, the development of judicial precedents has modulated or regulated matters for which the legislation does not offer answers, or those it does offer are innocuous.
In Mexico, the amparo trial enjoys a wide popularity in different social segments: companies defending themselves from tax liabilities, activists defending themselves from political persecution, unions seeking to protect their members, and individuals seeking to protect their rights.
Traditionally, the amparo trial is a means of defense against acts of authority; but social dynamics have produced new circumstances in which private parties act practically as if they were authorities. For this reason, since several years ago (2012) the amparo trial can also be filed, under certain conditions, against acts of private parties. However, this does not mean that now any act or omission of a private party can be fought through the amparo proceeding. The amparo law allows this if the private party acts with the functions of an authority since the applicable law requires it.
Now, an individual claimed that the CEO of an international social network performed acts comparable to those of an authority, by omitting to remove certain publications of another user of the social network platform, which he considered to be infamous to his person. And since the CEO failed to take any action, they filed an amparo lawsuit.
On July 5th, 2024, a judicial precedent (tesis aislada) was published in the Weekly Federal Court Report, under registry number 2029125, which resolved the aforementioned case (published under the title “PRIVATE INDIVIDUAL EQUIVALENT TO AN AUTHORITY FOR THE PURPOSES OF THE AMPARO TRIAL. A PERSON WHO MANAGES A DIGITAL SOCIAL NETWORK DOES NOT HAVE THIS CHARACTER”).
The aforementioned judicial precedent derived from a remedy of appeal (the “Remedy“), which was resolved by the Second Collegiate Court in Criminal and Administrative Matters of the Seventeenth Circuit, located in the City of Chihuahua, State of Chihuahua (the “Collegiate Court“).
Within the argumentation of the judge who resolved the Amparo proceeding (in the first instance), it was stated that it was not possible to consider that the social network had the character of responsible authority for the amparo trial, since, although there are assumptions in which a person or a private legal entity can be considered responsible authorities for an amparo trial, in the said Amparo trial such assumptions were not met, since the service provided by the social network has as its origin a contract between private parties.
In resolving the Remedy, the Collegiate Court determined that the judge who resolved the amparo trial ruled correctly, additionally pointing out that the relationship between the complainant and the social network derives from the terms and conditions of the private agreement to which any user of said social network adheres. Therefore, if so deemed, the complainant should exhaust ordinary legal remedies.
Although this judicial precedent is innovative and relevant to the social networking industry, we consider relevant to note that, in accordance with the amparo regulation, it is not binding on other judicial authorities; however, we consider that it sets an important precedent for the future that should be considered by participants and executives of social networks.
Nevertheless, the route to enforce rights that are considered infringed by the acts or omissions of the directors or managers of the social networks does not go uncontested; simply, is not through the amparo trial that the affected party can defend itself, but rather it will have to resort to the legal action derived from the agreement for the rendering of the subscription service to the social network itself, which is normally of a civil nature.
