An Italian prosecution against Google made the headlines again this week (New York Times, Bloomberg) with the news that prosecutors in Milan are pushing for three Google executives and one former executive to be sentenced to terms of imprisonment for their failure promptly to take down an offensive video from the Italian-language Google Video service in 2006. Readers in the U.S. and elsewhere may be baffled at the idea that the facts at issue should lead to prison terms. We take a look at the facts and the law, and consider whether the prosecutions are reflective of a profoundly different legal culture, raising issues about how providers of internet services will navigate diverse legal regimes in the future.
“Most entertaining video”
The case relates to the uploading to Google Video of a mobile-phone video showing an autistic high school student being bullied by his classmates. The video was allegedly uploaded to the Italian-language Google Video on September 8, 2006, and not removed until November 7. According to the prosecutors, the video appeared in the site’s “most entertaining videos” section, ranked as the twenty-ninth most viewed. The video was only taken down after Down-syndrome advocacy group Vivi Down appealed to the Italian authorities, who in turn demanded that Google take down the video (it would appear that though the victim was in fact autistic and did not have Down Syndrome, Vivi Down’s involvement was prompted by derogatory references to Down Syndrome in the offending video). According to Google, it did everything that was required of it under the applicable laws, and removed the video within hours of being notified. The four Turin youths involved in the bullying were subsequently tracked down (with the help of Google), and sentenced to one year community service with a center for children with Down syndrome.
Google: ISP, content provider, or something else?
Italian law is in line with European standards in relation to internet service provider liability: Italian legislative decree of April 9, 2003, n.70, faithfully implements EU Directive 2000/31/EC on Electronic Commerce (a European directive is a legislative instrument adopted at the EU level, which is not directly applicable in the member states, but must be separately implemented by each government). Art. 14 of the Directive and Art. 16 of Legislative Decree stipulate that an “information society service” provider who provides hosting services (defined as “storage of information provided by a recipient of the service”) shall not be liable for information stored at the request of the recipient, on condition that it does not have actual knowledge of illegal activity and that, upon obtaining such knowledge, the provider acts expeditiously to remove or disable access to the information. Art. 15 of the Directive and Art. 17 of the Italian Legislative Decree provide that there is no general obligation to monitor the information which providers transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity. Criminal prosecutions of internet company executives are rare, but not unprecedented in Italy (see Eric J. Lynam’s article in Privacy & Security Law).
Discussions of the case have focused on the issue of whether Google is an “internet service provider” (ISP) on the facts. If Google’s role in the provision of the Google Video service is that of an ISP, so the reasoning goes, it should be able to avail of the defenses under the Electronic Commerce Directive described above. On the other hand, if it is deemed a content provider (such as an online newspaper), it will be held responsible for the content that it hosts. In fact, both the European and Italian laws are applicable to “the provision of an information society service” (“prestazione di un servizio della società dell’informazione“), which is defined as “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service.” (Article 1(2) of Directive 98/34/EC as amended by Article 1(2)(a) of Directive 98/48/EC). According to Google’s lead attorney in the case “Google Video is not a content site and it is not an ISP, it is something else entirely. … Google is an instrument people use to locate content produced by someone else. It is a mistake to try to make it fit into the definition for something different.” (quoted here). The legal question appears to be whether, in light of the nature of the service, Google could establish that (a) it is providing an “information society service”; and (b) that the service provided by Google Video amounts to “hosting.” If so, the issues should be confined to if Google had “actual knowledge” of the video.
The issue of knowledge appears to be precisely what the Milanese prosecutors are focusing on: they argue that Google must have known of the existence of the video well before November 7. According to their submissions, in light of comments posted to Google Video voicing outrage at the video, “[i]t is reasonable to imagine that comments like this were followed by requests by these same people that the video be removed” (quoted in the New York Times article). If it were indeed the case that Google had actual knowledge of the video (which they vigorously deny), and delayed in taking it down, then a finding of liability would not be particularly inconsistent with web hosting liability laws on either side of the Atlantic.
Calls for filtering?
There are, however, suggestions that the Milanese prosecutors are calling for more than prompt take-downs of offensive material. According to La Stampa, they are arguing that Google could relatively easily implement “controls” to prevent such incidents occuring again in the future. Rather disturbingly, they point to the example of Google’s deal with the Chinese authorities to provide a “censored search engine for Chinese use.” Are the Milanese prosecutors really openly calling for the kind of active filtering imposed by the Chinese authorities? Also rather disquieting is the prosecutors’ conclusion that “Google only implements filters when it sees an opportunity for gain,” and its comment that Google’s choice of a freely accessible service was motivated by its desire to increase its revenues by maximizing the diffusion of videos hosted on its services. Is the profit-motive on trial here? The prosecution seems to be suggesting that Google could easily have implemented an effective filter, but refrained from doing so out of an a concern that it might impact on its profits. But on what grounds would Google have seen itself as obligated to implement such a filter, where prompt take-down policies have to date generally been deemed adequately to protect those harmed by offensive content, in Europe and elsewhere?
Vivi Down, the advocacy group which was instrumental in bringing the video to the attention of the Italian authorities, has stated in a press release:
“Vivi Down has no desire to see the Internet censored, but acts out of respect for the legitimate rights of a party harmed by a criminal offense, so that the judicial authorities can definitely ascertain whether the publication of the video involved the commission of one or more crimes precisely provided for by our criminal legislation. Within a democratic society, freedom of expression is sacrosanct, just as is the respect of the rules upon which social cohabitation is founded and respect of the rights of one’s neighbor, especially of those of the weak and defenseless.”
Clearly, there is a balance to be struck between freedom of expression (both online and off-line) and the rights of others, but the approach the Milanese prosecutors seem to be advocating, characterizing Google as a content provider with direct responsibility for all content posted, implies striking that balance in favor of extensive obligations to monitor and filter online content, which would undoubtedly have a chilling effect on online freedom of expression.
According to the New York Times, even if found guilty, the four defendants would not in fact serve prison sentences, as prison sentences of less than three years are commuted in the absence of a criminal record. Yet the allegations are serious in nature, and a conviction would clearly compel Google to reassess how it delivers its services in Italy and elsewhere, possibly even forcing it to implement some kind of active filtering of content, and making the task of providing online services across different jurisdictions ever more challenging.
By Brian Harley.