Google Officials Criminally Culpable for YouTube Video
A 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.