I was pleased to be interviewed last night on BBC America World News (live!) about the convictions of three senior Google executives by an Italian court for privacy violations. The case involved a video uploaded to Google Videos (before the acquisition of YouTube) that showed the bullying of a person with disabilities. (See "Larger Threat is Seen in Google Case" by the New York Times' Rachel Donadio for the details.)
Internet commentators were up-in-arms about the conviction, which can't possibly be reconciled with European law or common sense. The convictions won't survive appeals, and the government knows that as well as anyone. They neither want to or intend to win this case. If they did, it would mean the end of the Internet in Italy, if nothing else. Still, the case is worth worrying about, for reasons I'll make clear in a moment.
But let's consider the merits of the prosecution. Prosecutors bring criminal actions because they want to change behavior—behavior of the defendant and, more important given the limited resources of the government, others like him. What behavior did the government want to change here?
The video was posted by a third party. Within a few months, the Italian government reported to Google their belief that it violated the privacy rights of the bullying victim, and Google took it down. They cooperated in helping the government identify who had posted it, which in turn led to the bullies themselves.
The only thing the company did not do was to screen the video before posting it. The Google executives convicted in absentia had no personal involvement in the video. They are being sued for what they did not do, and did not do personally.
So if the prosecution stands, it leads to a new rule for third-party content: to avoid criminal liability, company executives must personally ensure that no hosted content violates the rights of any third party.
In the future, the only thing employees of Internet hosting services of all kinds could do to avoid criminal prosecution would be to pre-screen all user content before putting it on their website. And pre-screen them for what? Any possible violation of any possible rights. So not only would they have to review the contents with an eye toward the laws of every possible jurisdiction, but they would also need to obtain releases from everyone involved, and to ensure those releases were legally binding. For starters.
It's unlikely that such filtering could be done in an automated fashion. It is true that YouTube, for example, filters user postings for copyright violations, but that is only because the copyright holders give them reference files that can be compared. The only instruction this conviction communicates to service providers is "don't violate any rights." You can't filter for that!
The prosecutor’s position in this case is that criminal liability is strict—that is, that it attaches even to third parties who do nothing beyond hosting the content.
If that were the rule, there would of course be no Internet as we know it. No company could possibly afford to take that level of precaution, particularly not for a service that is largely or entirely free to users. The alternative is to risk prison for any and all employees of the company.
(The Google execs got sentences of six months in prison each, but they won't serve them no matter how the case comes out. In Italy, sentences of less than three years are automatically suspended.)
And of course that isn’t the rule. Both the U.S. and the E.U. wisely grant immunity to services that simply host user content, whether it’s videos, photos, blogs, websites, ads, reviews, or comments. That immunity has been settled law in the U.S. since 1996 and the E.U. since 2000. Without that immunity, we simply wouldn't have--for better or worse--YouTube, Flickr, MySpace, Twitter, Facebook, Craigslist, eBay, blogs, user reviews, comments on articles or other postings, feedback, etc.
(The immunity law, as I write in Law Five of "The Laws of Disruption," is one of the best examples of the kind of regulating that encourages rather than interferes with emerging technologies and the new forms of interaction they enable.)
Once a hosting service becomes aware of a possible infringement of rights, to preserve immunity most jurisdictions require a reasonable investigation and (assuming there is merit to the complaint), removal of the offending content. That, for example, is the "notice and takedown" regime in the U.S. for content that violates copyright.
The government in this case knows the rule as well as anyone. This prosecution is entirely cynical—the government neither wants to nor intends to win on appeal. It was brought to give the appearance of doing something in response to the disturbing contents of the video (the actual perpetrators and the actual poster have already been dealt with). Google in this sense is an easy target, and a safe one in that the company will vigorously fight the convictions until the madness ends.
And not unrelated, it underscores a message the Italian government has been sending any way it can to those forms of media it doesn’t already control—that it will use whatever means at its disposal, including the courts, to intimidate sources it can’t yet regulate.
So in the end it isn’t a case about liability on the Internet so much as a case about the power of new media to challenge governments that aren’t especially interested in free speech.
Internet pundits are right to be outraged and disturbed by the audacious behavior of the government. But they should be more concerned about what this case says about freedom of the press in Italy and less what it says about the future of liability for content hosts.
And what it says about the Internet as a powerful, emerging form of communication that can't easily be intimidated.