Ridiculous Criminal Trial Of Google Execs Begins In Italy | Techdirt

Ridiculous Criminal Trial Of Google Execs Begins In Italy | Techdirt.

Well, I think this post on techdirt misses the point by asserting a position without complete knowledge of the facts and very little knowledge of european regulations and no knowledge of italian laws and legal system.

Definition of ISP in Italy is very clear and definitely Google is not an ISP. (BTW, it requires registering to the local FCC equivalent).

There is a european law (ecommerce directive) which excludes responsibility for "mere conduits". (update: as Andrea correctly remembers, it's also for caching and hosting)

Is YT a "mere conduit" ? this remains to be seen. (re. the update above, I considered the mere conduit because it is obviously not caching and, IMHO, it's unlikely that it can be considered hosting, a there's a bunch of applications that work on specific contents doing classification, organizaztion, tagging, removal, automated audio editing, etc.)

the charges are "diffamazione aggravata e di trattamento illecito di dati a fini di profitto", sorry, I don't know a legal translation for this.

the sanction is up to 3 years and up to 1032 Euros (that was 2M lire before switching to Euros)

the offenses contained in the video were aimed at the disabled kid and Google (Youtube) helped increasing its visibility, therefore deriving "editorial responsibilities", according to the prosecutors. this is in accordance with the forthcoming european Audio Visual Directive.

to support this position from prosecutors are the fact that it was classified as "funny", inserted in an organized content system, in a catalogue, it was tagged, all activities that do not fall into the classification of a "mere conduit".

second charge is of illegal handling of personal data, according to privacy laws.

that boy had health problems which were evident to anyone watching the video. they were evident in the video as they would have been on stolen photos.

who authorizes YT to make those informations available to anyone ? in such conditions (as is releated to health), the authorization can be given only in writing by the parents of the boy. and so definitely not obtainable online.

the mistake YT probably did in this case is that they did not state in the terms and conditions of the service that some kind of videos ca NEVER be uploaded and the result was an illegal handling of personal "sensible" data (as it is qualified by law; some kind of informations (such as health related infos) are not only private but also "sensible" and have more restrictions).

IMHO, it is not impossible that a Google exec is found guilty, has to pay the fine of 1032 Euros and sentenced to some months.

In Italy, if your sentence is less than 2 years, you don't go to jail and the possible fine is extremely low.

if it was just for the direct legal consequences of the specific case, IMHO, we would not be here discussing about it.

the critical issue is that the European Audio Visual Directive is going to enter into effect soon and any precedent on implementation of what constitutes a "mere conduit" activity can have significant impacts.

is tagging, classification, ranking, etc a "mere conduit" activity ? up to what point the automated processing of a system can fall into the "mere conduit" classification ?

it was much easier before, where certain "analysis" of content could be performed only by humans.

building a service that looks at content and proposes specific illegal content used to require human intervention and hence it was clearly recognizable as an "editorial" activity and therefore prosecuted. (for example, a site with content which promotes racial hate or drugs abuse)

now, automated tools can deliver the same results (even on a much larger scale, trascending human processing capabilities) thanks to semantic interpretation, voice recognition, face and physical attributes detection and indexing and correlation, etc.. and could be programmed to produce the same output with no human intervention.

is this enough to say that the entity which economically benefits from this activity is just a "mere conduit", just because there's no human envolved in the process ?

we will soon know what italian justice will decide in this specific case, but I believe it might be just the first of a string of other similar cases, as technology evolves.

Comments

[ZARAF 2000]

I totally agree with your analysis. One thing is clear: Google, and US based individuals, do not understand european privacy laws. In fact, there is more than that: google has built its entire legal system to try and escape any liability in any jurisdiction, other than the Santa Clara County, California, USA. Thisi is wrong: if a company does business in a country and makes revenue and profit in that country, it must bear the responsibility for its acts. Google defend itself by stating that it cannot control all the content of the videos uploaded. If taht's the case, it's your problem, not ours: if someone uses your infrastructure to violate the law, you are liable just as much as that individual. The whole point, though, is that google in this case could have indeed controlled the content, but it did not. Its omission is a clear violation of the law.
Ciao

[Vgula]

I was wondering if this analogy would work if I ran a rental car company and someone rented a car from my company and looted a bank and in the process killed a security guard. Indeed, I provided a part of the infrastructure that was used by other individuals to commit a crime so could I be punished for this crime? I did fill gas in the car, I made sure that the tire pressure was correct, it was clean and was fit for use. Am I a 'mere conduit'?

[Stefano Quintarelli]

Vgula, there are 3 provisions for liability exemption: mere conduit (a pipe), hosting (a platform), caching (a mixe of the two)

but I don't think this is the case.

we simply and plainly don't know the trial documents.

suppose you run a storage service; someone uploads to it some child porn pictures; someone tells you and you see them.

or rather than child porn, suppose it's terrorists attack plans

What do you do ? do you remove them and notify the police or do you wait for a court to tell you to remove them ?

this would obviously have nothing to do with free speech, nor provider responsibility. Just improper dealing with unlawful content.

in europe, personal sensible data (e.g. related to politics, health, religion) deserve a specific careful treatment

I'm not arguing this is what has happened, I'm just saying that this could be the case and I'm not judging the judge based on a press release, while he has ruled based on analysis of both parties documents.

BTW, Google lawyer, Mr. Pisapia, after the trial, said that the trial made clear there is no responsbility to verify content uploads in advance and that the thing has to deal only with privacy regulations and not with "editorial" responsibilities.

[December Advocate]

Stefano, Google removed the video when it was flagged

Youtube receives an incredible amount of video posting every day, such that it actually requires users to flag inappropriate content for the youtube team to even be able to find an unsavoury video. whilst the video publication of the beating was a sick act, the blame lies with the people who posted it (i assume they were the same guys doing the beating). the google execs had nothing to do with the video and as soon as it was flagged it was taken down.
what the Italian courts have basically said is "dont make anything that anyone could use to offend the law, even if it has legitimate use".

Vgula's rental car analogy is entirely valid. what if somebody hacked this very website and infected visitors with a virus? does that mean that the web admins should be prosecuted? what about the hosting company? the ISP? the advertisers? all of these people had a hand in the existence of the website.

the effect of this precedent will be that Italy will not be allowed to access Youtube, as it is impossible to ensure that no infringing content gets posted du to the fact that the whole process is automated

[Paul]

"if someone uses your infrastructure to violate the law, you are liable just as much as that individual."

By this logic, every vehicular manslaughter/homicide case is the car executives fault. Every drive by shooting should incarcerate the auto-plant worker who assembled the car. ATT, Verizon and Vodophone should be held soley responsible if their network is used by a criminal to setup a drug deal or to plot a robery or murder. Just because Google provides a service does not mean it should be held criminally liable for what its users do with it.

[Stefano Quintarelli]

@December Advocate: I don't know. I have not seen the court documents.

I can't exclude there was some mistake in their TOS, re. to italian laws, or that it might have been proved that they knew, even before receiving the notification and decded not to take action.

Really, nobody knows. I look forward to read the motivation, then I'll give an opinion.

If it's a wrong decision by the judge, then there are two other levels of appeal in italy and one in europe. And I will be more than happy to express this view.

so far, none of the consequences you mention are plausible. we don't know yet.

In any case, according to italian laws, if you are convicted to <=2years, you don't go to jail (unless you have been convicted before; it's a sort of a wildcard), so this decision will not have material effects on the persons envolved.

@Paul: this is not the case. if you give a service and you don't comply with the laws, then you might be liable. (suppose I open a sharing website in the USA and don't comply with DMCA provisions...); but, in any case, THIS IS NOT THE CASE. pls read my previous comment above.

[Paolo]

Maybe if you ran a rental car company you wouldn't be liable, but if you ran a taxi company you probably would. The question is whether Google is renting cars or driving taxis.

[Stefano Quintarelli]

@Paolo, yes, but again, this is not the case..
the case is about privacy, not editorial responsibility, something that has been ruled out.