Google execs face prison over user-generated video

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The city state of Milan is prosecuting Google for defamation and breach of privacy after a video showing a down-syndrome boy being attacked by bullies was posted on the search engine's video site. Yesterday (16 December), four Google executives were in the stands protesting their innocence under EU laws on Internet freedom.

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. 

"We did exactly what is required under European and Italian law. We took the video down when notified by the authorities and, thanks to our cooperation, the bullies who recorded and uploaded the video have been identified and punished. We work closely with the Italian authorities to prevent illicit or immoral use of the Internet. This prosecution is akin to prosecuting mail service employees for hate speech letters sent in the post," Google said in a statement after yesterday's hearing. 

Henry Blodgett, CEO and editor-in-chief of Business Insider said "it's hard to know where to start, other than to say Google should probably refuse to do business in Italy. It's one thing to decide that, henceforth, companies will be responsible for screening user-generated content. It is another to drag four senior executives who had no knowledge of or control over the video in question to a foreign country, charge them as criminals, and possibly throw them in jail." 

"I've been quite critical of very broad immunity for websites or ISPs that host defamatory or privacy invasive content of others. However, I find this Italian prosecution extremely troubling. First, this is a criminal prosecution, and I'm generally very troubled by criminal prosecutions for defamation or privacy invasions. Second, Google is not the content provider here. It shouldn't be prosecuted as one," said Daniel Solove, law professor at George Washington University.

The video in question was posted on Google Video in 2006. It ranked among the site's most popular content and had the highest amount of downloads. The Italian police told Google to take the video off its website and the bullies were brought to justice. But the Milan state prosecutor – and an Italian down syndrome charity, Vivi Down – filed charges against Google for defamation and breach of privacy. 

The Electronic Commerce Directive, adopted in June 2000, was established to provide legal certainty across the EU on all areas related to online commerce. The directive states that the applicable law is that of the member state in which a service provider is established. At the same time, it excludes prior authorisation for foreign online companies wishing to operate in other member states. 

The directive also deals with commercial communication (including unsolicited adverts, for example), contracts concluded by electronic means, the information service that providers must make available to users (various contact details) and the liability of intermediary services in transmitting, 'caching' and storing information. 

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