Google on Trial: Privacy, Italian Style

Criminal charges against four Google executives over an allegedly offensive video posting raise troubling questions about the liabilities of Web companies

By Mark Scott

Who's responsible for the mountain of user-generated content uploaded onto the Internet every day? That's the crucial question being asked at a trial set to begin on Feb. 18 in Milan, Italy, involving four Google (GOOG) executives.

The men—including the search giant's chief legal officer, David Drummond—face criminal charges of defamation and privacy infringement over an allegedly offensive video posted in 2006 to a Google video site. If convicted, they could spend up to 36 months in jail. Google denies the accusations and is defending the executives.

Beyond the plight of the Google managers, the case raises troubling questions about the liability of Internet companies such as social networking site Facebook and Google's YouTube video subsidiary for content put on their sites by outsiders. Until now, such companies were widely assumed not to be responsible for third-party content—nor were search engines and portals such as Google and Yahoo! (YHOO) held responsible for material found through their search tools.

But in the Milan case, Italian prosecutor Francesco Cajani disagrees, arguing the companies are accountable for all content online, even if they are unaware it's there. And by accusing specific Google execs, not the company itself, the lawsuit marks the first time individuals have been held criminally responsible for alleged violations by a company of data protection statutes.

"surprise and shock,"

"The response to this case has been surprise and shock," says Trevor Hughes, executive director of the International Association of Privacy Professionals (IAPP), which isn't involved in the trial but is watching it closely.

The Italian case, which was delayed from an expected Feb. 3 start, relates to a three-minute movie uploaded to Google Video's Italian site in 2006. In the video, four teenagers from the Northern city of Turin are seen teasing a boy with Down syndrome. After Google received two complaints about the content, the company says it removed the clip within 24 hours. But Italian officials, who didn't return calls for this article, argue the video should never have been allowed to be uploaded in the first place.

Google concedes the content caused offense. In a statement the company says: "As we have repeatedly made clear, our hearts go out to the victim and his family. We are pleased that as a result of our cooperation the bullies in the video have been identified and punished."

The controversy is whether the Internet giant is legally accountable for all the content on its video sites. Under U.S. and European law, Internet service providers (ISPs) such as AOL (TWX) aren't usually liable in such situations because they're not the owners or originators of the data. Rather, they're defined as conduits—merely passing along information, hosting it without adding editorial value, or caching it (e.g., maintaining a duplicate copy).

"If they don't have knowledge of the offensive material and don't edit the posts, then ISPs are protected," says Louise Prince, solicitor for London-based media law firm Harbottle & Lewis.

Legal Gray Area

But the telecommunications regulations on which such protections are based were written years before the recent explosion of user-generated content. Now there's a growing legal gray area around the likes of Google—specifically, whether it's more like an ISP or a traditional content provider liable for the material it distributes.