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Rights Privacy

Rights Privacy – Google Executives Convicted in Italy

March 1, 2010

The Law Protecting Online Service Providers

Can an Online Service Provider be held liable for illegal activities that occur by users on their service?  In the US, the Digital Millennium Copyright Act provides an exemption for ISPs who inadvertently provide the facilities which are used by others for infringement purposes. In Europe Directive 2000/31/EC (‘Directive on electronic commerce’) has a similar exemption for online service providers. Essentially, the resounding principle in both laws is that a service provider should not be in any way responsible when they were not aware of the fact of the infringement and when made aware they took steps to remove the content.
In further detail the Directive emphasises that there is no general obligation on Online Service Providers to monitor the content that they transmit or store (Art 15). For online service providers who are hosting content such as Google and their subsidiary service Youtube, they are specifically covered by Article 14.
This is generally how Google shields themselves from most claims but they are far from achieving complete international immunity, as last Wednesday, 3 of Google’s executives and an employee were held guilty of violating the Italian privacy code, leading to 6 month suspended prison sentences.

The Italian Case
According to the New York Times Italian prosecutors contended that “Google was negligent because it allowed a video of high school kids bullying a disabled classmate to stay on its Italian-language video service for two months in 2006”. Many comments were made regarding the post saying that it was “shameful […] should be taken down immediately”. It was not until Vivi Down, an association protecting persons with Down Syndrome, contacted the police, who then notified Google, that it was then almost immediately removed from Youtube.
In their official reaction to the convictions, Google has stated that they took down the video “within hours of being notified by the Italian police” (please see their blog post here). The question is whether any users made any complaints prior to the police take down request. The prosecutors do not seem to advance any substantial evidence on that point and have adduced that it is “reasonable to imagine” that requests were made by users for the video to be removed.

Were Google made aware of the content by other users prior to the police notification, then it is most probable that they would not be protected by Directive 2000/31/EC . However, this is an evidential point and it appears that we will have to wait a further 3 months before the judgment is published in order to read the actual motivations of the judge.
Google, in their official blog, have said that they found the decision ‘astonishing’ and that they are ‘deeply troubled by this conviction’.  They have surmised that ‘common sense dictates that only the person who films and uploads a video to a hosting platform could take the steps necessary to protect the privacy and obtain the consent of the people they are filming’. With this reaction, Google abdicates any form of responsibility from having made this video accessible to the users and takes a somewhat dramatic view on the implications of this decision: “the Web as we know it will cease to exist”.

A way forward
Blanket impunity for transmitters of information, regardless of how innocent, could be seen as a somewhat untenable proposition. Responsibility is always relative to size and Google, as Times journalist said on Friday, has gone from being David to now Goliath. However, even Goliath can not be expected to review the 20 hours of video uploaded onto Youtube every minute for objectionable content. This would be an impossible and commercially debilitating task.
More pragmatically, it may be worthy for Youtube to add a button to their page templates where all users may bring such issues to Google’s attention. In the same way that the Child Exploitation and Online Protection Centre have convinced BeBo to have an alert button integrated into their site to protect children, Google itself could have a button added to its subsidiary’s site.
The down side is that this could encourage peer monitoring which could be misused by sectarian interests or for political purposes in certain countries. Nonetheless, it would be an important development to allow direct participation in the regulation of internet rather than facing what may be inevitable state or European intervention.
In this connection, it is not inconceivable to think of a case being brought against Italy to the European Court of Human Rights, intimating that the display of a disabled child being bullied is a form of degrading treatment is contrary to Article 3 of the European Convention of Human Rights. The result of which Italy could be held accountable for failing to fulfill its positive duties under that Article. Furthermore, the Charter of Fundamental Rights has been given legal force with the Treaty of Lisbon since December 2009, thereby a preliminary question may be posed to the European Court of Justice on the compatibility of Directive 2000/31/EC with EU fundamental rights.
With this in mind, taking a more pre-emptive and participatory approach to the internet should avoid the need for state intervention and edge us slowly away from the absolute libertarianism that has reigned over the internet to a model more reflective of society at large.

What do you think would be the right way to balance the competing interests of privacy of the individual and the responsibility of ISPs? We look forward to hearing your views.