Legal Analysis Of Italian Criminal Conviction Of Google Execs Says Judge Made A Big Legal Error

from the whoops dept

We were among those amazed back in February, when an Italian court ruled that three Google execs were criminally liable for a video posted on Google Video, and were sentenced to six months suspended sentences. The video in question involved some kids taunting a mentally challenged boy and throwing a tissue box at him. Within hours of Google being alerted to the video, it was taken down. Part of the debate focused on whether or not Google should have known about problems with the video or whether or not Google had actually been informed earlier -- but the only evidence that seemed to have been presented was that the comments on the video complained about the content. But it wasn't clear that anyone at Google had read the comments. Still, when the decision came out, it was just the decision -- not the full ruling by the judge, leading to some detailed legal guesses for the judge's reasoning.

However, it looks like the ruling has finally come out, and one Italian legal expert, after reading through it in detail, suggests the ruling was based on a pretty big legal interpretation error by the judge. The details are a bit complex, but basically, it seems the judge may have combined two separate parts of a law that were disconnected (and, the key part of the law wasn't even brought up in the case itself) to suggest that Google's big mistake was in not prominently telling users that they should not upload videos without the permission of everyone in the video. That information was in the Google Video's terms of service, but the judge felt that wasn't enough.

The problem is that the law doesn't actually say that Google had to make that information clear to users -- and, even if Google didn't satisfy that part of the law, not only was it not mentioned during the trial at all, it's also not connected to the part of the law Google was actually charged under:
The trouble with the ruling, said [Elvira] Berlingieri, is that Section 13 of the law was not mentioned in the case against the Google trio at all. One charge laid against them by prosecutors was to do with defamation, and that failed. The other was to do with privacy but that was based on a supposed data-processing violation of Section 167 of the law.

Section 167 of the Act says that anyone who breaches particular Sections of the Act with a view to gain or with intent to cause harm shall be punished by imprisonment of between six and 24 months. The Sections to which it refers, though, do not include Section 13.

"If you put together Section 13 and Section 167, that is how you get a sentence of six months," she said. "The problem is that Section 167 does not talk about Section 13. In the charge written by the prosecutors, Article 13 is never mentioned."
This definitely seems like good news for Google in its planned appeal.

Of course, even outside of the legal nuances of this, just from a common sense standpoint, this ruling is incredibly troubling. It's difficult to see how anyone (outside of those with logic deficiencies) could defend the ruling. The video itself was actually helpful in punishing the kids responsible. If Google had actually stopped the video from being uploaded, they would have gotten away with the bullying. On top of that, making the sanctions criminal against individuals seems way over the top, especially for individuals who had absolutely no knowledge of the video in question whatsoever. The whole thing seems ridiculous on any level.

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  • identicon
    Anonymous Coward, 30 Apr 2010 @ 3:01am

    So does this go away on appeal?

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

  • identicon
    LawAppeal, 30 Apr 2010 @ 3:13am

    Internet minefield

    In the early days of the net it was raw, gritty & full of content that went way beyond civilised thought.

    Over the years the net has progressed in a positive & cleaner direction. This is due to self policing & policy setting of website owners.

    No-one can dispute that the web has really cleaned up its act, & is more responsible these days.

    Googles action on this video was correct (They took it down) it also caught some idiots doing what we all consider morally wrong. All this without the need for judgmental intervention.

    What is now becoming an internet sensation is the ability for lawers, law makers, big corporations & governments to interfere with an entity (The internet) for their own gain wether it be financial or to appear to gain higher moral ground.

    What is wrong with these people?... come on the internet is doing just fine on its own.

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

  • icon
    Niall (profile), 30 Apr 2010 @ 4:33am

    The concern here is the punishment vs the 'crime'. So someone bullied someone, threw a box of tissues at them, and filmed it (themselves?). So someone else completely unconnected gets a 6-MONTH sentence?? What do the perpetrators get? Detention? Why not arrest witnesses for not stopping a bank robbery or calling the police? Or arrest the owners of the bank for not making it impossible for their bank to be raided (i.e. a crime happening on their property).

    Meanwhile if you download 24 songs you get hit by a bill for millions with the IP industry trying to push that into criminality, while people doing actually seriously hurtful crimes get let off on technicalities or leniency, or not locked away because of lack of prison spaces (all problems in the UK). Lovely...

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

    • identicon
      Michael, 30 Apr 2010 @ 5:17am


      I don't think it is even the punishment vs. the crime. It is the arbitrary placement of blame. Isn't the manufacturer of the tissue box just as liable as Google?

      Shouldn't the box indicate in large text that it is not to be thrown at handicapped children? Do the corners need to be that sharp?

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

  • identicon
    hangman, 30 Apr 2010 @ 4:34am

    Italian fubar

    of couse he made a moronic move-----he's italian!!!!!!! What else you you have expected???

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

  • identicon
    Anonymous Coward, 30 Apr 2010 @ 9:20am

    one italian legal expert. i am sure there has been at least one legal expert who thinks that charles manson got a raw deal too. again, no real news here, just someones opinion.

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

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