Google Slapped in Italian Abusive Video Case

Posted by: Andy Reinhardt on February 24, 2010

Search giant Google suffered a stinging and surprising setback in Italy on Feb. 24, when a Milan court found three company executives guilty of privacy violations in relation to a controversial clip posted on Google’s YouTube video-sharing service in 2006. Judge Oscar Magi sentenced the three men—current Google chief legal officer David Drummond and chief privacy counsel Peter Fleischer, and former CFO George Reyes—to six-month suspended terms but cleared them of defamation charges, while acquitting a fourth defendant, Arvind Desikan, on all charges.

The long awaited and closely-watched decision marked a significant challenge to the bedrock principle that Internet Service Providers and “hosting platforms” such as YouTube, Facebook, and Twitter are not responsible for the content of the material that users upload. Google called the ruling “astonishing” and vowed to appeal. The case “poses a crucial question for the freedom on which the Internet is built,” said company spokesman William Echikson in a videotaped statement posted to the BBC’s Web site.

The YouTube video in question showed a group of Italian teenagers taunting and hitting an autistic boy at a school in Turin. After it was uploaded in September, 2006, it shot to the “most viewed” section on YouTube, where it remained for two months. An Italian advocacy group for people with Down syndrome complained about the video to YouTube, which removed it and cooperated with authorities in indentifying the bullies, who were eventually apprehended and sentenced to community service by a juvenile court.

But the advocacy group, Viva Down, wasn't satisfied and sought charges from Milan's public prosecutor. Most legal experts expected the Google execs to be exonerated of criminal charges, given that they were uninvolved with the video. (What's more, the event in question slightly preceded Google's $1.65 billion acquisition of YouTube.) Google's Echikson echoed that position in his reaction after the verdict. "None of these three employees had anything to do with this video—they didn't upload it, they didn't film it, they didn't review it—and yet they have been found guilty," he said.

"If this [decision] is left to stand," Echikson continued, "we believe that it would threaten the very freedom that the Internet has brought about." If sites like YouTube "are held responsible for vetting every video, then the freedom that we know—the Web we know—will cease to exist. These are important points of principle, and that's why we are going to appeal and support our employees all the way."

Google could fare better in its fight if the case moves to European courts. There, it would be governed by safe harbor provisions of the 1995 EC Data Protection Directive, which should protect the neutrality of hosting platforms. That the Italian court didn't limit the responsibillity of Google executives for the uploaded video on such a basis came as a surprise to attorney Andy Millmore, the head of litigation of London law firm Harbottle & Lewis, who was not involved in the case. "The decision attaches liability on a broader basis than we would have predicted," Millmore says.

Were the decision to be upheld, the impact on Google and many other companies would be enormous. The Guardian newspaper notes in a Feb. 24 story, "the clear implication of this decision is that every video should be screened before it is put up on the site." Yet keeping up with the volume would be a Herculean—and extremely expensive—effort that could destroy YouTube's prospects of ever turning a profit: According to the Guardian, more than 20 hours of video are uploaded every minute to YouTube around the world.

Aside from the cost and logistical challenge, the Italian decision raises vital questions about online privacy, freedom of speech, and the independence of interactive forums such as YouTube or Facebook. The Guardian notes that Italy has been especially aggressive recently in pressing legal issues concerning the Internet and Web 2.0. Tax authorities there have pursued eBay to learn the identities of its customers. The Milan public prosecutor asked Yahoo to reveal the identities of suspected criminals who had sent e-mails via its service. And Facebook has been hit with demands by the interior ministry to hand over the names of subscribers who were supposedly involved in groups that glorified the Mafia and advocated violent harm to Italian Prime Minister Silvio Berlusconi.

Such intersections between law enforcement and emerging forms of communication are inevitable—and even desirable, to that extent that they provide a clearer legal framework going forward. After all, every new medium needs to be probed and tested by the market and the courts. But as unfortunate and distasteful as the YouTube video was, Google's managers weren't any more responsible for it than an Italian mayor would be for offensive speech shouted across one of his town's public piazzas. The Italian case against the Google three will likely be overturned. Until then, the outcome is providing ample fodder for free speech in outraged tweets and forums across the Web.