Will Google's Italy Conviction Stick... Or Is The Problem In The Law?

from the common-sense-problem dept

Most of the discussion around the conviction of three Google execs on criminal charges over a video uploaded to Google video (which none of those execs had anything to do with), rightly focused on the assault on basic common sense that the result created. Convicting three executives as criminals for actions they had absolutely nothing to do with, and which concern events where the company acted expeditiously once it was officially informed of the issue, just violates every concept of fairness. It's hard to see how anyone can justify this sort of outcome (though, we've see a few people try).

However, a separate question is whether or not the ruling has a real legal basis. Given some of the reports we'd received from some lawyers in Italy, the feeling was that this was perfectly within the bounds of Italian law (and some were upset that we'd even question that). There is some uncertainty, however, as to how this fits within wider EU law, which Italy must also abide by. The Citizen Media Law Project has a post that details why they think that the conviction won't hold on appeal, suggesting that the judge misclassifed Google in determining whether or not the company qualified for EU-wide safe harbors for service providers.

However, there are some other possibilities as well. Struan Robertson has a detailed post, looking at EU safe harbors, which notes two reasons why Google may have lost the case. The first is that, despite EU safe harbors, there's actually a carve out for data privacy issues. Since the execs were acquitted on defamation issues, but still convicted on privacy violations, this might be correct. However, if that's the case, it highlights exactly why this loophole is both silly and dangerous. Yes, privacy is very important, but it's never going to make sense to put the liability for privacy violations on a third party directly. There's nothing wrong with focusing on potential lawbreaking by those who created or uploaded the video -- but blaming the platform used for hosting the video makes no sense at all.

The second area that Robertson highlights is the one that prosecutors had definitely brought up in the case: that Google did have "notice" of the offending nature of the video prior to the official alert from the police. The prosecutors argued that the comments on the video should have served to alert Google. Again, this seems a bit ridiculous -- given how many videos are uploaded every day, and how many comments are found on those videos.

However, these issues all point to problems with EU law that really should be fixed. First, the safe harbors need to be clearer, so that it's understood who or what is covered. Second, the "privacy" loophole needs to be closed. Yes, privacy is important, but nothing is so important that it should lead to jailing totally unrelated parties. Finally, the law needs to be much clearer on what constitutes official notice. As Robertson notes, there was a proposal made in the UK a little while back to clarify that very issue, and the politicians chose not to do so. When you leave the process open wide to interpretation like that, you get cases with nonsensical results, such as what happened in this case. Hopefully, Google wins on appeal, but in the meantime, Europe really should fix these problems with its current safe harbor laws.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Mar 5th, 2010 @ 4:07am

    I will move to Italy if they believe in, and provide these protections.

     

    reply to this | link to this | view in thread ]

  2.  
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    mjb5406 (profile), Mar 5th, 2010 @ 4:25am

    Sigh

    I honestly think Techdirt must ban Anonymous Coward posts... when you read silliness like "I will move to Italy if they believe in, and provide these protections." it makes me cringe... if those same backwards, draconian laws were brought to the US, these same people would demonstrate en masse against them.

    The answer is rather simple; have Google block access to any of its services to Italian IP addresses. That will last, at best, a couple of days, after which the people will force the issue.

    Politicians both in the US and abroad have totally lost sight of what is right or wrong, basing their legislative decisions not on what the people need but, all too often, who pays them the most... meaning corporations, lobbyists, industry groups, etc. If this precedent holds true, they need to lock up the executives at Fiat the next time someone has a fatal traffic accident with a Fiat, because they should know that their vehicles could cause an accident, and had prior notice" of the possibility of an accident because of police reports. It would be just as ridiculous.

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    yozoo, Mar 5th, 2010 @ 5:04am

    Wait . . . as I recall

    Isn’t Italys current emperor a media magnate (owning nearly 80% of all print and broadcast media outlets in the country)? Maybe once a titan from another industry buys the country from Berlusconi, things like this will change (Although I suspect the new guy would have his own market enemies to persecute).

     

    reply to this | link to this | view in thread ]

  4.  
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    mjb5406 (profile), Mar 5th, 2010 @ 5:47am

    Re: Wait . . . as I recall

    You'd think that Berlusconi had better things to do with his time... wait, he does... defending himself against multiple attacks regarding his sexual deviance with underaged women. So the Google execs get convicted and the Playboy Prime Minister gets nothing. Italian justice...

     

    reply to this | link to this | view in thread ]

  5.  
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    joakime (profile), Mar 5th, 2010 @ 7:02am

    Privacy Provisions

    The privacy loophole should be closed for isolated & individual privacy violations (like this specific case showed).

    But should remain open for large scale privacy violations.

    Thing is, you can't close this loophole entirely, because then there would be no incentive for the service providers to work in privacy controls into the product. I believe this loophole exists to address those service providers that are extremely lax in privacy and security. I can easily imagine a scenario where a provider has implemented privacy controls but a new bug / fault has been discovered and is being exploited by a wide group of people. Without this loophole, there would also be no incentive to fix this bug / fault in a timely (speedy) manner.

     

    reply to this | link to this | view in thread ]

  6.  
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    The Groove Tiger (profile), Mar 5th, 2010 @ 8:12am

    Re:

    'It is of course well known that careless talk costs lives, but the full scale of the problem is not always appreciated.

    For instance, at the very moment that an Anonymous Coward said "I will move to Italy if they believe in, and provide these protections," a freak wormhole opened up in the fabric of the space-time continuum and carried his words far far back in time across not-quite infinite reaches of Earth to a distant country where strange and warlike beings were poised on the brink of frightful international battle.

    Unfortunately, in the Italian tongue this was the most dreadful insult imaginable, and there was nothing for it but to wage terrible war for centuries.'

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    hmm, Mar 5th, 2010 @ 8:51am

    Basically a bank robber phones a getaway driver to arrange a heist.

    In Italy it now seems that the TELEPHONE COMPANY exec would go to prison as the third party..........

    Or the store-owner who sold the man a knife that he used to kill his wife......

     

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  8.  
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    jdub (profile), Mar 5th, 2010 @ 9:09am

    Re:

    No it would be more like you loaning your car to your friend, and he gets busted by the cops in it spying on a girl (privacy issue). Instead of punishing your friend, they throw you in jail cause you gave him your car.

    Sounds logical to me!!! (NOT)

     

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  9.  
    identicon
    luca, Mar 7th, 2010 @ 4:40pm

    please, don't be stupid

    yes: please, don't be stupid.
    I guess and I hope that perhaps you don't know that the video has been on-line on youtube for about two months.
    Google is a real-time firm, maybe "the" real-time one, so it really can't take two months to remove a video where two i*iots are hitting a mental-diseased guy.
    Newspapers also talked about this video much before it got removed, so G. has really no excuses.
    I perfectly understand that a video-hoster (any video-hoster) can't check every single video posted but, nevertheless, it can't take two months to remove, expecially after tons of abuse-reporting.
    I don't know who the google-execs are and what is (was?) their role in G., but italian laws say execs have responsability for what happen into the firm they manage, and this is for every firm in Italy.
    So please, before attacking italian laws like a bull seeing the red flag, don't be stupid.

    Luca,
    Milan, Italy

     

    reply to this | link to this | view in thread ]

  10.  
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    Grumpy (profile), Mar 8th, 2010 @ 4:44am

    Re: please, don't be stupid

    That is expressly not their call to make. Google is neither police nor judge and only those authorities can make the decision about what should and shouldn't be shown. If Google, on their own initiative, removes as much as a single word or video not in clear violation of the TOS they instantly become responsible for everything on their servers. No takedown notice, no action - and that's how it should be. If the Italian authorities have been less-than-prompt in serving that notice, none of us are too surprised...

     

    reply to this | link to this | view in thread ]

  11.  
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    luca (profile), Mar 8th, 2010 @ 12:11pm

    Re: Re: please, don't be stupid

    you say G. is not a judge: well, now please feel free to give a wide explanation of why G. have policies for under-aged people about sex- or violence- related videos or videos that could offend everyones' sensibility.
    Don't confuse abuse-reporting to italian authorities (never made) to abuse-reporting to G. itself by other youtube users.
    your argomentation is weak, and it can't take two months to remove a video of, I say it again, two fu**ing i*iots hitting a mental-diseased guy "just for fun" after tons of abuse-reports and requests to remove.

     

    reply to this | link to this | view in thread ]


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