Google execs convicted by Italian court in shock ruling

An Italian court has convicted three Google executives ofviolations of the country's privacy code, handing them a six monthsuspended prison sentence over a video hosted on the site whichshows an autistic child being bullied.

The ruling threatens to undermine the safe harbour usuallyenjoyed by companies such as Google, who under EU law are not heldresponsible for content they did not create.

Turin school pupils filmed their bullying of an autisticschoolmate and posted the video on YouTube. Google has said that itremoved the video "within hours" of it appearing on the site andhelped police to identify the person who uploaded it.

But four current and ex-Google executives were charged byItalian prosecutors with defamation and invasions of privacy overthe fact that the video was hosted at all.

Two current and one former Google executive were convicted. Theyare its legal officer David Drummond and global privacy counselPeter Fleischer as well as former employee George Reyes.

The EU's E-Commerce Directive protects service providers fromliability for material that they neither create nor monitor butsimply store or pass on to users of their service. The Italianruling could threaten the operation of that exemption.

Service providers are not exempt unless they act to removeillegal material once they are made aware of it. They also can loseexemption if they monitor content.

Google does not monitor YouTube content but only responds tocomplaints. The case against the executives argued that the companydid not have enough staff to properly monitor videos.

Google said that it would appeal the ruling.

"In essence this ruling means that employees of hostingplatforms like Google Video are criminally responsible for contentthat users upload. We will appeal this astonishing decision becausethe Google employees on trial had nothing to do with the video inquestion," said Google lawyer Matt Sucherman in a statement.

Google said that the ruling threatens to undermine the legalbasis of many of the internet's most popular services.

"European Union law was drafted specifically to give hostingproviders a safe harbor from liability so long as they removeillegal content once they are notified of its existence," saidSucherman. "[This ruling] attacks the very principles of freedom onwhich the Internet is built. Common sense dictates that only theperson who films and uploads a video to a hosting platform couldtake the steps necessary to protect the privacy and obtain theconsent of the people they are filming."

"If that principle is swept aside and sites like Blogger,YouTube and indeed every social network and any community bulletinboard, are held responsible for vetting every single piece ofcontent that is uploaded to them - every piece of text, everyphoto, every file, every video - then the Web as we know it willcease to exist, and many of the economic, social, political andtechnological benefits it brings could disappear," saidSucherman.

Telecoms law expert ofPinsent Masons, the law firm behind OUT-LAW.COM, said that thoughthe E-Commerce Directive did provide a safe harbour, it was notabsolute.

"The service provider will not be liable where it does not haveactual knowledge of unlawful material and, where a claim fordamages is made, is not aware of fact or circumstances from whichit would have been apparent to the service provider that theactivity or information was unlawful," he said.

"This means that, whilst there is no obligation to monitor thecontents of a web site, a service provider should not merely turn ablind eye," he said. "The [UK Regulations implementing theDirective] provide that the service provider cannot rely on thefact that it did not have constructive knowledge as a defence."

"The service provider must act immediately upon gainingknowledge that the material is unlawful by either removing ordisabling access to the material, and the person who has posted thematerial must not be under the authority or control of the serviceprovider," said Fell. "This reflects the terms of the EU Directiveand is why in the UK there is an emphasis on having a robust takedown notice and procedure."

Fell also said that it may be the case that a particular Italianlaw is not in fact bound by the E-Commerce Directive.

"Assuming that Google can show that it did not know about thematerial before being notified by the authorities – which isdifficult to prove - then the E-Commerce Directive should haveprovided it with protection," he said. "However, in the UK thee-commerce regulations are drafted so as to apply only in relationto the laws that were in force at the time the regulations cameinto force." "Any laws passed subsequent to that date need to bespecifically added to the protection afforded by the regulations bymeans of a Statutory Instrument. This may or may not be the case inItaly, but if it is, Google will need to ensure that the laws underwhich they are prosecuted are included within the relevantprotection."