February 26, 2010

Italy vs Google

Bad news, as you probably already know, from the front line of Italy’s contemporary fight for freedom: three Google executives, charged with defamation and invasion of privacy, were convicted by the court of Milan for failing to prevent publication on the search engine of a video that showed a boy with Down’s syndrome being bullied by four students at a Turin school. The video was posted in 2006 on Google Video, a now-defunct service that Google ran before it bought YouTube.

The news is very shocking. First of all in itself, and secondarily because this is the first criminal action taken in Italy or elsewhere against Google managers for the publication of content on the web.

The significance of judge Oscar Magi’s ruling, according to assistant public prosecutor Alfredo Robledo, who was acting for the prosecution with public prosecutor Francesco Cajani, is that “The right to conduct business cannot prevail over the dignity of the person.” “At last, a clear word has been spoken. At the heart of this trial was protection of the individual through protection of privacy. Everything else is beside the point. I am confident that this ruling will go out from the court of Milan and finally provoke discussion on an issue that is fundamental,” Robledo added.

So they seem to want to basically “educate” someone about something. “Strike one to educate one hundred,” as the old Leninist motto goes? Nah, even though many Italian judges and prosecutors, especially in Milan, are left-leaning and with a communist background, this is not the case—educating is one of the tasks of Justice, after all. But one might be tempted to argue that perhaps the ones who need to be educated are the prosecutors and the judges. Why? Let’s call Google’s spokesman to speak:

“It is an attack on the fundamental principles of freedom on which Internet is built”, said Google’s spokesman, Marco Pancini. He added that it would be appealing “against a decision that we view as surprising, to say the least, since our colleagues had nothing to do with the video in question. They did not film it, they did not upload it and they did not see it”. According to Mr Pancini, the three executives have been held “penally responsible for illegal activities committed by third parties”. He said that during the proceedings, the three executives “had shown courage and dignity, since the very fact that they were put on trial is excessive”. Throughout the trial, Google has maintained that responsibility lies with whoever uploads a video to the web. For Mr Pancini, “if this principle is abandoned, there is no possibility of offering services on internet.”

In fact, the concept is very simple and straightforward: if we don’t accept the principle that responsibility lies with those who upload a video “there is no possibility of offering services on internet.” Therefore, the ruling by the judge, Oscar Magi, means that YouTube—along with the many websites and hosting platforms which offer user-generated content—cannot continue to do what it has always done. It’s totally, absolutely absurd. Imagine if every Facebook user, as well as every blog owner, could be hauled before a judge for comments, videos and pics left on their pages/blogs by other users! We had better give up blogging, facebooking and twittering as soon as possible…—Ok, comments here are moderated and need my approval before posting, but I can afford it because of the size of my blog, but what about if I were to face 500 to 1,000 comments per posts?

Needless to say, the video was disgusting. But, the criminals here were the ones who committed the assault and filmed and posted it, and they have been brought to justice already, not Google. Google, in turn, had taken the clip down within hours of being notified of it by Italian police, and that’s why it has nothing to be blamed for, unless you think that a failure of clairvoyance and an inability to time-travel have to be included in the category of crimes.

Yet, Luca Sofri, the author of one of Italy’s most popular blogs (no comments allowed …), says that Google and other Web-sharing platforms have a responsibility for what’s posted on their sites: “As Spider-Man says, ‘With great power comes great responsibility.’ Allowing freedom of opinion does not mean you can be a platform for people to defame others or violate their privacy.” Well, it must be said that Luca is almost as lefty as the judges and prosecutors of Milan. But he partially redeems himself by adding that he suspects that the sentence may also be seen as an example of how out of touch Italian political leaders and magistrates are with the massive changes in the way information circulates online: “They are judging the Internet with the same instruments of the past. The Web creates situations that are completely new and don’t have paragons with the world before. If these incidents are happening all over the world and Italy is the only country to condemn Google for it, maybe there’s something we haven’t understood.”



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7 comments:

  1. Hi! I totally agree that web-sharing platforms (and the executives of the companies who run them) shouldn't be held liable for what's posted, so long as potentially illegal content is removed on request.

    However, I think that Google are making this verdict out to be a bigger deal than it really is.
    Judge Magi's full reasoning will not be published until next week, so until then it's very hard to speculate as to why he reached the decision he did. I’ve looked into some of the relevant privacy law (for a recent post on my blog if you want to check it out!) and it seems that Google are only guilty to the extent that they failed to adhere to certain formalities before launching their Videos service. In other words, I really do not think that the court was suggesting that Google should have been screening the content uploaded to their site.

    In any case, Judge Magi's full judgement will make for interesting reading once it’s published!!!

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  2. There is also another aspect. In making a legal issue out of this affair, Italian justice is publicising it perhaps far more than ever was caused by what had taken place at the Turin school and recorded on video in the first place. This far more effective violation of privacy would thus be caused by Italian justice. Their own ruling would work against them.

    And one wonders where were these staunch defenders of 'the dignity of the person' where Berlusconi was concerned? It seems that there were no limits to 'the right to conduct business prevailing over the dignity of the person' where the Prime Minister of Italy was concerned.

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  3. @Marc:

    You wrote in your post that
    "Arguably, the most alarming thing about this case is not that the clip was uploaded, or that it took TWO MONTHS and a call from the police to have it removed (-in fact, given that there are 20 hours of video uploaded to YouTube every minute, I'm actually surprised such things don't happen more often); but rather, that it became one of the most viewed videos on the site. You're going to see a lot of criticism directed either at Google or the Italian judiciary in the papers today… I doubt though that we’ll see any criticism directed at the thousands of people who logged on to see some poor kid get bullied!"

    I coudn't agree more with you.

    As for your "prudent" approach to this whole matter, I truly hope you are right, but wouldn't bet on it ...

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  4. @Mirino:

    When the Law is ad usum delphini ... ;-)

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  5. I think judges using the justice-sharing platform should be liable for illegal and unjustified rulings, and when they to make a potentially illegal ruling they should be removed.

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  6. prima di dire che una sentenza è assurda bisognerebbe almeno attendere che siano rese note le motivazioni della sentenza altrimenti più che un giudizio si esprime un pregiudizio

    La condanna di Google per violazione della privacy: i limiti della libertà sul web ( e non solo)

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  7. @MP:

    Unfortunately, it’s not that easy.

    The Italian magistrates enjoy a high level of institutional independence and cannot be removed, or disciplined or even transferred, except by the Higher Council of Judiciary.

    Unlike in the US, where District Attorneys are appointed by Governors or elected in political elections, Italian prosecutors are selected through the same selection process used to select judges, based on knowledge of the law, not on party affiliation.
    Italy is the only country where the State District Attorneys are not members of the Executive. They also are selected, disciplined and removed by the same Superior Council.
    The Italian Constitutional framers established such powerful magistrates totally independent from political interference because at the time of Fascism Mussolini used to make use of prosecutors and judges to promote his political agenda, namely to persecute political opponents. The Italian constitution, promulgated in 1948, intended to avoid such interference and abuse of power by the Executive.

    Yet, at the same time, it must be said that many Italian magistrates are politicized—many of them have a Marxist “pedigree” and are biased against Conservative parties and politicians. As a result they have the power to overthrow a government that they don’t agree with… without the need to be elected by the people (Berlusconi believes the proceedings against him are the work of “opposition” judges who are trying to stage a coup d'état against his Government).

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