Thursday, January 31, 2013

Acquitted in Italy, finally

Finally, after 6 years of criminal prosecutions and appeals, my colleagues and I have been acquitted of a “privacy crime” in Italy.  

This case generated significant interest in the broader legal and Internet communities.  Some dismissed the entire proceedings as absurd.  Others viewed it as a seminal test of freedom of speech and the liability of Internet platforms for user-generated content.  I want to share a few thoughts, both on the procedural next steps, and on the broader significance of the verdict, from my personal perspective.  

Procedural Next Steps:  The Milan court announced its decision to acquit us on December 21, but it has until February 19 to issue its written decision.  The Public Prosecutor will have until roughly April 5 to decide whether or not to appeal the acquittal to the top Court of Cassation.  So, things are not quite finished...

Why is the case important?  Well, first, my colleagues and I were on trial personally.  Indeed, Google Inc was never on trial here.  Under Italian law, you can’t put a corporation on criminal trial, so the prosecutors had to find some “responsible” humans instead.  The lower-court judge imposed 6-month (suspended) jail sentences on three of us defendants.  I was always baffled by the conviction, because the Italian Privacy Code’s Article 13, on which my conviction was based, doesn’t carry a criminal penalty and I had no connection, direct or indirect, with the incident or conduct of affairs of Google Italy.  As a lawyer, I would have thought:  case closed!

For many years, I simply refused to set foot in Italy.  Criminal law is a blunt instrument that is inappropriate as a regulatory tool.  My criminal prosecution in Italy is a terrible example of a court trying to make Internet/privacy policy in a very dynamic field through criminal prosecution. Let the Garante, the Italian Parliament and the European Union resolve such issues.  

Globally, this case resonated, because people quickly understood that this has a direct impact on free speech and freedom of the Internet. The Internet is an incredibly valuable resource that provides services to the worlds’ population not even imaginable a decade ago. It can only function in an open and free environment, and intermediary liability is a critical issue.

This case also affected the global perceptions of Italy, in terms of business and e-commerce.  Italy was simply viewed as out of step with how other advanced countries are dealing with these issues, or as one journalist put it more colorfully:  “Italy risks internet Stone Age with trial of Google Executives.”  By maintaining this aggressive use of its criminal privacy laws, it moved itself further outside of the area of risk that e-commerce businesses are willing to take on to do business in Italy. Why would anyone locate an EU e-commerce headquarters or major data center in Italy given this risk?  

The case dealt with the unfortunate ways that vulnerable victims can be injured by users of the Internet. The Italian courts had already dealt with the students who abused the victim here and their teacher who made this unfortunate incident possible.  But the appeal by us three Google employees raised far different issues. Billions of photos and videos are uploaded to Internet platforms around the world every day.  Is it fair or right to prosecute employees of the internet company that provides the forum and search capabilities for a single bad photo or video that is later found amongst those billions of others?  

I am relieved that justice was finally served in Italy.  I hope the prosecutor does not choose to appeal this case to the top Court of Cassation.  Enough is enough.  I have no idea how much Italian public resources have been wasted on this mis-guided 6-year prosecution.  This prosecution served no public interest, and least of all, Italy’s.  Justice has now finally been done, and it’s time to let this entire sorry saga rest in peace.     

1 comment:

Unknown said...

Just wanted to offer my congratulations on finally getting this dealt with. It should never have happened, and the proper ending has been far too long coming. {Jonathan}