Google, alongside other Internet sites, is fearful that the case, if won, could set a precedent in Europe.
The European eCommerce Directive, part of Google's defence yesterday, says that "technical intermediaries" – web content hosts – are not liable for bad content but the creators or video posters are.
If found guilty, Peter Fleischer, chief privacy counsel, David Drummond, senior vice president and chief legal officer, and George Reyes, a former chief financial officer, all face a year in prison. Arvind Desikan, a marketing executive, faces a six-month sentence. Google told EurActiv its hosting facilities, like YouTube, rely on self-regulation and users flagging abuse "as the EU eCommerce Directive requires".
Legal certainty for the EU single market
The eCommerce Directive, which has been transferred into national law in all member states, was envisaged for Internet service providers and web-hosting services, but not for search engines, says Lilian Edwards, a professor of Internet law at University of Sheffield.
However, nine member states have also insulated search engines against liability on unlawful user-generated content. Italy, notably, has not done so, but Spain, whose data protection agency dismissed a similar case brought against the Google-owned YouTube in February, has.
It is important for the single market that member states provide legal certainty to search engines and add them to the list of intermediaries, argues Edwards.
If the case is won, hosts and search engines that act as hosts may have to rethink the way they do things, but Edwards argues that it is "unrealistic" and "technically impossible" for hosts to filter their content.
A legal maze
The prosecuting side, however, argues that by allowing such content on their search engine, Google is guilty of libel and breach of privacy laws.
Interestingly, the Italian data privacy agency is not supporting the prosecutor in the case and the European Disability Forum (EDF) admits that sentencing the executives is a step too far.
There has been much thought put into which laws could pin Google down for the case. The City of Milan also tried to invoke disability law as grounds for punishment.
Carlotta Besozzi from the EDF said the bottom line is not how we send Google to jail but how we make sure this does not happen again.
"An economic sanction and a revision of the law would make much more sense in this case," Besozzi added.
Yesterday's hearing was cut short in the afternoon and will continue on 23 December with a verdict expected at the end of January 2010.
