Legal Commentary

Ramifications of Google ruling far-reaching

By David Canton

For the London Free Press – March 29, 2010

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Three Google executives were convicted of data privacy violations over a video they neither created nor posted.

The international legal community was shocked when four Google executives had criminal charges filed against them in Italy a few years ago. The alleged crime was allowing a video to be posted on Google Video (the precursor to Google acquiring YouTube), which featured kids bullying a boy with Down syndrome.

That shock recently turned to outrage as three of the Google executives were convicted on data privacy violations. Peter Fleischer, David Drummond and George De Los Reyes were acquitted of defamation charges but were given six months suspended jail sentences for the privacy violations. Google product manager Arvind Desikan was acquitted on all charges.

This decision has been highly criticized as it calls into question who ultimately ought to be held accountable for Internet content.

The former information commissioner of the United Kingdom, Richard Thomas, said this case gives privacy laws a “bad name” and that the outcome of the case was “ridiculous.”

David Drummond, one of the convicted executives and chief legal officer at Google, has said he will appeal the decision.

Shortly after Google became aware of the video, the video was taken off the site. The teens from Turin, Italy, who were responsible for creating and posting the video were prosecuted and the video was used as evidence in their criminal proceedings.

Prosecutors in the Google executives’ case claimed Google had “notice” of the video before the police brought it to their attention. The notice was purportedly in the form of comments that had been posted on the website in relation to the video.

Italian prosecutors are pursuing other similar cases against such other huge Internet magnates as eBay, Yahoo, and Facebook.

While the law in Italy has been strictly applied in the Google case, it is still somewhat unclear whether EU law allows for directors of companies to be held personally responsible for what is posted on their websites. Italian laws must comply with EU law.

It does not make sense to have liability for Google on facts such as these, and certainly not findings of personal liability for executives. The company merely provided the forum for the data to be shared – it did not create or share it themselves. And it removed the video once aware of it.

The focus should be on whomever created or posted the video.

The ramifications of this decision are far-reaching. If directors of international companies can be held personally responsible for every last item posted on their websites, this could create a climate of censorship preventing any possibly controversial posts. It is simply impossible to abide by that standard, and impossible for any business to actively monitor or review every post before it goes live.

In addition to taking a critical look at public policy behind Italian privacy laws, EU privacy laws ought to be clarified to explain what constitutes official “notice.” Surely video comments, which would number in the hundreds of thousands a day worldwide, cannot qualify.

Full post as published by eLegal Canton on March 29, 2010 (boomark / email).