My Italian Appeal

My Google colleagues David Drummond, George De Los Reyes (now retired) and myself were convicted in Milan, Italy in 2010 for violating Italian privacy law.  We have appealed these convictions.  The first appellate hearing took place in Milan on December 4.  I attended the hearing in person.  The next hearing will take place on December 11.  I want to describe this appeal, and the broader issues at stake in this appeal, from my personal perspective.

First, a review of the facts:  in 2006, students at a school in Turin, Italy filmed and then later uploaded a video to Google Video that showed them bullying an autistic schoolmate.  Google Video was a predecessor to YouTube.  The video was totally reprehensible and violated Google Video’s terms and conditions of service.  Google took it down within hours of being notified by the Italian police of the presence of the offensive video, consistent with its policy to remove any content that violates the terms and conditions of service. Indeed, Google had clear policies and processes in place to help ensure that objectionable content was dealt with swiftly and effectively. Google also worked with the local police to help identify the person responsible for uploading it and she was subsequently sentenced to 10 months' community service by a court in Turin. Several other classmates who were involved, as well as the teacher who failed to stop the offensive conduct, were also disciplined.

In these rare but unpleasant cases, that's where Google’s involvement would normally end.  Under European law, hosting platforms that do not create content, such as Google Video, YouTube, Bebo, Facebook, and even university bulletin boards, are not legally responsible for the content that others upload onto these sites. But in this instance, a public prosecutor in Milan decided to charge us with criminal defamation and a failure to comply with the Italian privacy code.  None of us, however, had anything to do with this video. We did not appear in it, film it, upload it or review it. None of us knew the people involved or were even aware of the video's existence until after it was removed.  

Nevertheless, in 2010 a judge in Milan convicted the three of us for failure to comply with the Italian privacy code and sentenced us to six-month suspended jail sentences.  We were all found not guilty of criminal defamation. This ruling means that employees of hosting platforms like us can be held criminally responsible for content that users upload, even if we’re completely unaware of the content. We are now appealing this extraordinary decision both to clear our names and because it represents a serious misunderstanding of privacy law online and a threat to freedom on the web.  European Union law gives hosting providers protection from liability so long as they remove illegal content once they are notified of its existence in order to provide protection for hosting providers and their employees in exactly this circumstance.  Sweeping aside this important principle and attacking the very freedoms on which the internet is built threatens the continued availability of sites that accept user generated content.

Although we were convicted of violating the student’s privacy, it is the bullies who took the video and put it up on the site, in violation of the representations that they made to Google regarding the content of the video.  It is those bullies who should be, and have already been, held legally responsible for failing to comply with their obligations under the privacy law.

The European Union's Electronic Commerce Directive, enacted in 2000, sets a clear legal framework for establishing liability for unlawful content on the Internet. It prevents liability for those who merely provide the forum for sharing user generated videos, drawing a clear line between those who develop and control content for the Internet, and those who, in their capacity as technological intermediaries, provide the means and the tools to make this content publicly available.

By establishing legal certainty and creating a single EU-wide standard, the E-Commerce directive allows the development of open platforms that promote free expression on an unprecedented scale and has played a crucial role in speeding the rapid growth of the Internet and the development of the new economy in Europe.

How does the E-Commerce prescription work in real life? Say an Internet user uploads a video filled with illegal hate speech or violence. When notified of this illegal content, the hosting platform is obliged to take it down. The hosting platform, however, is not obliged to monitor and prevent the upload. The guilty party is the Internet user who posts the content. In this case, Google did exactly what the E-Commerce directive requires - it removed the content upon notification, and took the further step of cooperating with law enforcement requests, helping to bring the wrongdoers to justice.

If Google and companies like it were responsible for every piece of content on the web, the Internet as we know it today – and all of the economic and social benefits it provides –could not continue.  Without appropriate protections, no company or its employees would be immune: any potentially defamatory text, inappropriate image, bullying message or video in which third parties appear would have the power to potentially shut down the platform that had unknowingly hosted it.

Google and other Internet hosting platforms require legal certainty with respect to their liability. By retroactively creating new obligations for hosting platforms – and attaching criminal penalties for employees like us – this conviction destabilizes the certainty of law.

The judgment also criticizes Google’s terms and conditions of services included in its agreements with users of its video sharing service, suggesting that Google buried it in difficult to understand privacy clauses characterized as a “prefabricated alibi.” Yet all types of businesses, from financial and retail to Internet companies operate with consumers on the basis of similar contractual terms of service.

The judgment’s reasoning subjects hosting providers and their employees to uncertain and progressively higher standards as technology advances. What new legal obligations might be imposed in the next case before a criminal court? It is this uncertainty which menaces Internet freedom. In his closing lines, the judge himself raises this dangerous possibility -  “There is no doubt that the amazing speed with which technology is advancing will allow the managers of web sites to control the uploading of content,” he writes. “The existence of increasingly sophisticated pre-screening filters will imply great responsibility for operators. Criminal liability (negligent or willful as the case may be) for omitting to carry out checks will be a lot easier to find.” While this may have been the view of the trial judge, it was not the view of the Italian Parliament when it implemented the EU directives providing for protection for hosting intermediaries like Google. We do not share the judge’s view of a future internet where hosting companies monitor and prescreen all of the content uploaded by its users and unilaterally determine what will be available for sharing with others.

By criminally prosecuting individuals like us who were not connected to the video at issue, this case represents a dangerous precedent. To seek criminal penalties against employees just because they work for a company that provided a hosting platform is a chilling prospect, and threatens to have a substantial impact on the future development of the Internet.

The real culprits, the teenagers who bullied their classmate and uploaded the video of it, and the teacher who permitted it to occur have already been identified and punished. The entire matter should end there.