There’s more to the Google-Italy case than meets the eye

Intermediary liability has
become one of the critical flashpoints of Internet governance. A few weeks ago,
we celebrated an Australian court decision that denied a bid by copyright holders to make
ISPs liable for copyright infringement by people who happened to be using their
networks. Yesterday, we all learned of an Italian court decision that seems to have
pointed in the opposite direction. Google executives were convicted of a
privacy violation because of a video that one of their millions of users posted.
The decision raises major concerns as it seems to require Internet
intermediaries to monitor user generated content, which would be a disaster for
the freedom and openness of the Internet.

But there is more to this
case than meets the eye. US news coverage, which concentrates solely on Google’s
outraged claims, fails to take into account three broader issues: 1) the fact
that Google itself has undercut its exemption from liability claim by
implementing monitoring of copyright; 2) the weakness, vagueness and obsolescence
of the EU E-Commerce Directive’s liability protection provisions; 3) the
politics and law of privacy law in Europe and the way privacy law can be used –
for both legitimate and illegitimate reasons – to attack this large global
corporation that threatens the business models of entrenched interests.

First, consider the “chickens
coming home to roost” angle. While Google claims that it cannot possibly
monitor all user-generated content, in Italy the corporation has already
made concessions to copyright interests, engaging in surveillance of postings on behalf of copyright
holders. It uses an automated recognition system that checks the audio or
visual tracks of a video and compares them to a database provided by media
companies. One source we know had this experience when trying to upload a video
they produced, which used as background music a song by Prince.  Shortly after uploading the video, the person
received a notification by Google that the video had been disabled. The person (who
is a lawyer) did not think they had engaged in copyright violation, as the activity
would have fallen under the Italian equivalent of “fair use”
exemptions of US
copyright law. But of course the monitoring was automated and did not respect
the niceties of applying law to facts. The point is that Google did much more
than simply provide “storage” of user-generated content; it engaged
in a “monitoring” activity. They are not obliged to do so under the E-Commerce
Directive and, most importantly, doing it could very well disqualify them from
the exemptions therein, because they would “have actual knowledge of
illegal activity or information.”

There is also an important
political dimension to this story. Google is being targeted because of its prominence
and its threat to traditional media. According to a well-positioned source in
Europe who must remain anonymous, “Google is under attack in Italy (as
elsewhere) under many fronts, some of which are understandable (Google's
treatment of privacy/personal data law is laughable, to say the least) other
less so (entrenched media businesses see Google as a major threat to their old
business models).” Bear in mind that the Italian Prime Minister, Silvio
Berlusconi, is a businessman who made his money in traditional broadcasting. Berlusconi
has openly called for user-generated videos to be licensed and regulated in a
way that could kill user-generated video sites.

Our source continued with
some interesting observations about the legal subtleties of this case, and
urged that no conclusions about the policy implications be drawn before the
judge’s actual reasoning is known:

It may very well be that
the judge has simply condemned Google because it failed to notify to the
Italian Data Protection Authority that it was engaging in “data processing
activities”, which is an obligation under European law.  This would not touch at all the role of
Google as an intermediary (and thus, by analogy, of other intermediaries). As a
matter of fact, the ruling was based on a violation of privacy law (while the
charges of defamation were dropped by the judge). …Privacy/data protection
issues are excluded from the scope of the e-commerce Directive.  Therefore, it is possible that the final judgment
has *nothing* to do with the liability exemptions of intermediaries, except for
the fact that they have to respect privacy/data protection law (and it is the
non-respect of that law that has *huge* social, economic and political costs).

Finally, the European Union’s
E-Commerce Directive 2000
protects intermediaries who fall under three specific categories:
providing “mere conduit” or
“caching” or “hosting” services.  Google/YouTube certainly does not fall under
the “mere conduit” or “caching” category, but seems to
provide more than mere “storage.” The E-Commerce Directive was written well
before the age of user-generated content, and may need to be updated to provide
exemption to services that provide a vehicle for users to communicate and a
host of complementary services such as tagging, searching, and so on.

8 comments

  1. Anonymous

    As one of the people who facilitated the drafting of the exemptions in the E-Commerce Directive, I can assure you that “user generated content” was very much an issue we considered. Indeed, the whole “hosting” section assumed that the content so hosted was user-generated, rather than merely the republishing of conventional media outlets.

  2. Anonymous

    While most of the news media and political commentators are looking at the recent Italian court decision against Google from the freedom of expression angle, the more accurate analysis of the Italian court decision is the power of Silvio Berlusconi, politics and money. As recent events in Italy have undoubtedly shown, the changes to the judicial system that Berlusconi and his cronies in government have pursued are not based on issues related to democracy, the rule of law, or good government but on protecting the financial interests and political power of Silvio Berlusconi and his allies. For people knowledgeable on how Italian society functions, the latest court decision against three Google executives is more about protecting the business and political interests of Silvio Berlusconi and his friends in government than it is about Google and the Internet.
    http://pinione.blogspot.com/2010/02/stinking-boot-below-alps.html

  3. Anonymous

    I wouldn't worry to heavily about this, Italy is by no means in the advanced realm of internet usage, and many judges also tend to jump the gun on certain things. The few years I lived in Rome taught me to realize, whatever laws in Rome are passed, many are sure to be somewhat insane…..and most overturned or ignored within 6 months.

  4. Anonymous

    I personally don't think google should be held responsible for what its users post on google video or youtube. Penalize the user if you want to go after someone. Google is merely providing a service and how people choose to use that service is their own responsibility, google can not be expected to keep track of the millions of people who post content on a regular basis. All these fat cats crying about losing a few bucks when their pockets are already lined because users are posting their material is not googles concern.

  5. Anonymous

    This is just more crying from people who only care about money and backing big business. These are people that would step over their own mothers to make a quick buck. They are going after google because google has deep pockets to pay for large fines if it comes to that and the users who are posting this “illegal” content are in most cases posting from their computer located in their moms basement and really have nothing to go after. These people need to come to their senses and realize that there is always going to be an outlet on the internet that will allow users to post content that is not theirs to post. Google needs to do what an unnamed torrent site did and run their company from an abandoned oil platform in international waters where the laws can't touch them.

  6. Anonymous

    Google just might have sat on a one sided plank and starting sawing. I agree with their point that it is impossible for them to patrol and police all the content and postings found on their system. However, they more than likely should have never started the process of trying to police certain instances of copyright infringement. By doing so they've cornered themselves into being held to a higher standard of care, at least here in the U.S.

  7. Anonymous

    There is the same potential here in the UK under the recent digital economy bill advocated by the previous government. I am not a lawyer but reading on this subject it seems that many of the ISP's think this is unworkable. It gives old media players such as Rupert Murdoch a potential platform to target Google who he accuses of stealing from the newspapers. People make a living from content and that investment should be protected. You have to wonder how much of a hand big buisness has had a hand in shaping this?

  8. Anonymous

    I also dont think that google should be held responsible for any user's post. An individual should be responsible for his own action. Google runs millions of servers around the world and they cant keep track users one by one.