Conviction of Google executives "attacks internet freedoms"

Updated March 2010

Three Google executives have controversially been convicted of privacy law offences by an Italian court in a recent case, a decision which could be potentially damaging to a large number of companies who host content online.

The case involved a video which was posted on Google Videos on 8 September 2006, showing a number of Turin schoolchildren bullying another child who suffers from autism. The video remained on Google Videos until 7 November 2006, when it was removed by Google following a complaint from the Italian police.

Italian prosecutors brought charges against four Google employees under Italian defamation and invasion of privacy laws for hosting the offending video. Google sought to defend the claim on the basis that under the EU E-Commerce Directive, service providers are exempt from prosecution for offensive content as long as they remove the content once they are notified of its existence. However, the Italian authorities found that three of the four employees were guilty of breaching Italian privacy laws, and imposed suspended six month sentences on each of them. All of the employees were cleared of defamation.

The decision has horrified Google and a number of other leading web service providers, who feel that the case has set an alarming precedent, described by Google's lawyer, Matt Sucherman, as "attack[ing] the very principles of freedom on which the Internet is built". In the UK, the former Information Commissioner, Richard Thomas, described the Italian court's findings as "ridiculous" and stated that it "brings privacy laws into disrepute". He added that the decision is "like prosecuting the post office for hate mail that is sent in the post."

The practicalities of the decision mean that sites such as YouTube and Facebook would be required to monitor all content posted and immediately remove anything which is offensive or illegal. Owing to the sheer number of postings on the sites, this would be practically impossible, with postings to You Tube taking place at a rate of 20 hours of content per minute.

Google has stated that they will not be withdrawing their services from Italy, and that they intend to appeal the decision.

Comment

The decision of the Italian court has been greeted with dismay by businesses and regulators alike in the rest of Europe. If the decision is upheld on appeal, the hosting of large volumes of user generated content in Italy is likely to become unworkable. In the meantime, businesses hosting third party content in Italy will need to be particularly vigilant to ensure that illegal content is taken down immediately.

In the UK, under the E-Commerce Regulations, service providers will not be liable for defamatory content or content that infringes an individual's privacy as long as they do not have actual knowledge of illegal user generated content and provided that they act immediately to remove unlawful content upon becoming aware of it. The Italian decision highlights the different approaches adopted in different EU countries, even though national laws are based on the same EU Directive.

If your business hosts user generated content, the Italian decision is a timely reminder of the need to have robust monitoring and take-down procedures in place. For businesses operating in a number of different jurisdictions, the Google case highlights the need to ensure that procedures are tailored to take account of local law differences.

If you are concerned about the impact of the Italian decision on your business, or if you would like advice on liability for user generated content generally please contact the TLT Data Protection and Privacy team.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2010. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.