Google Officials Criminally Culpable for YouTube Video

google-italia.jpgA while ago, I blogged about a criminal case in Italy against several Google officials regarding a video somebody loaded onto YouTube.

According to the New York Times, the officials were convicted:

Three Google executives were convicted Wednesday of violating Italian privacy laws in a ruling that the company denounced as an “astonishing” attack on freedom of expression on the Internet.

The case involves online videos showing an autistic boy being bullied by classmates in Turin, which were posted in 2006 on Google Video, an online video-sharing service that Google ran before its acquisition of YouTube.

Prosecutors charged that the videos violated Italian personal privacy protections. They said the clips were removed only after complaints from Vivi Down, an Italian organization representing people with Down syndrome, whose name was mentioned in the videos.

“We are definitely satisfied that someone has to take responsibility for this violation of privacy,” said Guido Camera, a lawyer for Vivi Down.

Google said it planned to appeal, warning that the verdicts raised serious questions about the viability of user-generated content platforms like YouTube in Italy and potentially elsewhere in Europe.

“If company employees like me can be held criminally liable for any video on a hosting platform, when they had absolutely nothing to do with the video in question, then our liability is unlimited,” said one of the three executives, Peter Fleischer, Google’s chief privacy counsel.

“The decision today therefore raises broader questions like the continued operation of many Internet platforms that are the essential foundations of freedom of expression in the digital age,” he said in a statement.

The Google executives received six-month suspended sentences.

I have been one to advocate greater privacy protections against online gossip and rumor, but this Italian conviction goes way too far.  Although I have critiqued the expansiveness of CDA 230 immunity in the United States (I believe it has been expanded by courts far too broadly), I support the following  general principles: (1) without more (direct encouragement, etc.), a website shouldn’t be liable for content posted by others to that site; (2) websites should have a responsibility to take down material they know is violative of privacy or defamatory; (3) failure to live up to this responsibility should be dealt with civilly, not through criminal law.

In this case, the videos weren’t posted by Google but by another person.  They were taken down by Google after a complaint was raised about them.   Based on my understanding of the facts, Google acted quite responsibly here.

This case sets a terrible precedent and severely threatens Web 2.0 in Italy as well as anywhere that would consider similar misguided action.

Perhaps this case will make it to the European Court of Human Rights (ECHR),  which balances two articles of the European Convention on Human Rights — Article 8 which protects privacy and Article 10 which protects speech.

According to Article 8:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

According to Article 10:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The Italian decision pushes the balance way too far to the privacy side, to the severe detriment of speech.  I hope that Italian appeals courts or the ECHR will fix this very troublesome imbalance.

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5 Responses

  1. NookSurfer says:

    Wow…the sentence they’ve received is just too extreme for the situation. It would warrant a public announcement/apology of some sort…but jail time?

  2. Matthew Pemble says:

    @NookSurfer,

    No jail time – “suspended” means you don’t go inside.

    More generally – with regard to the law, the relevant EU Directive is here and you need to look at Article 14 (Hosting) – and Article 15 where it makes it clear that you cannot require preview or monitoring. I am not an Italian lawyer but I do know that their national implementation of EU Directives is sometimes “interesting”.

    Under the UK equivalent, Google appear to have taken sufficient and prompt action, when notified, to serve as a complete defence unless you could argue that the poster was:

    “acting under the authority or the control of the service provider.”

  3. Matthew Pemble says:

    Forgot to say – because it is a matter of implementation of an EU directive, assuming the Italian courts cannot sort it – I would expect that it would first be a matter for the European Court of Justice, as opposed to the ECHR.

    I disagree with Daniel’s third principle, however. Whereas the majority of cases of inappropriate information posted online should be dealt with through the civil courts (defamation, copyright etc), it is entirely possible to post material where the state has an interest in removing it rather than just the rights owner. I don’t therefore see why, as a matter of principle, failure to remove such material (as required by law) should not be subject to criminal sanction.

    There is plenty of avenue for arguing what kinds of information should fall in to that category, remembering that Article 10 ECHR is much weaker protection than the 1st Amendment, as well as what criminal sanctions are appropriate, especially for corporate activity. Remember that personal data does have the protection of the criminal law in the EU – and we are actually strengthening the sanctions in the UK as a result of some egregious corporate breaches of data protection.

  4. Matthew Pemble says:

    A UK blogger has done some further research and it appears that the requirement for immediate takedown on notification of infringing content was not met.

    Malcolm Coles article.

    I would note that this lack of any effective reporting system is not confined to Google: as a professional investigator, I, with the support of Yahoo UK, had great problems getting Yahoo Inc to prevent the spamming of racist harassment (this was some time ago, so YMMV). I had to use personal contacts to have an @live.com account in my name, which was being used for 419 fraud, disabled.

    If we are going to keep the police and the criminal courts out of this sort of thing, as Daniel insists (and I agree with with minor limitations) – the media companies have to provide appropriate mechanisms for efficiently dealing with complaints.

  5. Matthew Pemble says:

    A further update from the blog of Britain\’s top Data Protection law firm, showing why safe harbour provisions did not apply in this case.