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.