Italy's Case Against Google Is a Bad Moon Rising

If platforms for expression like YouTube were held responsible for all the content posted by users, then companies would be forced to actively screen all content before it could be posted -- no small feat.
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This week, four Google executives defend themselves in Italian court against charges of criminal defamation and privacy violations associated with a video posted by a user on Google Video. Italian prosecutors are seeking jail time for the executives, blatantly ignoring established liability safe harbors for ISPs and content platforms; meanwhile they are risking throwing a chill on innovation that could endanger the development of the next YouTube.

The video in question is without doubt repugnant: in 2006, four teenagers in Turin filmed themselves bullying a classmate with Down Syndrome and uploaded the video to Google Video. However, when Italian law enforcement notified Google of the video, the company removed it within two hours and helped police identify the bullies (who were consequently punished for their bad behavior). I previously wrote about this case almost a year ago and expressed hope that cooler heads would prevail. Regrettably, the prosecutor continues to ignore not only EU law itself, but also the perils to free expression and innovation in Italy that his overzealousness inflicts.

Here's where the Italian judge performs an end run around EU law: the EU E-Commerce Directive requires member states to protect intermediaries -- that is, ISPs and content platforms -- from liability for content posted by third parties. The rule rightly holds the person who posted the unlawful content responsible for that content. This rule, which the US has also adopted and has become the worldwide standard, is a key factor in the emergence of the Web 2.0 revolution of recent years, leading to a dramatic explosion of new ideas and forms of user generated content sites such as YouTube and Wikipedia and in interactive communications on blogs and social networks.

Flipping the rule around will demonstrate why: if these platforms for expression were held responsible for all the content posted by users, then companies would be forced to actively screen all content before it could be posted -- no small feat considering users worldwide upload 20 hours of video every minute to YouTube alone. Such a rule would make these vital platforms for expression economically unjustifiable.

If the Italian prosecutor gets his way, the online collateral damage could threaten free expression in Italy and beyond.

New media entrepreneurs would have no incentive to offer platforms for expression for users in Italy, cutting off Italian Internet users from the wider international community online. The prosecutor may believe he is not arguing for censorship, but less speech (including all manner of lawful speech vital to a well functioning democracy) on blogs, social networks, and other user generated sites will most certainly be the effect.

Let's not forget that the system -- as it's set up now -- worked. The video was stripped from the site as a result of the company acting on its promise to be responsive to complaints. The bad actors were duly identified and punished in accordance with established law. Yes, the system worked, but the Italian courts apparently aren't interested. Instead the prosecutors -- looking to make examples of the Google executives -- may end up making themselves the poster boys for a bad precedent that lends plenty of fodder to authoritarian regimes that also seek to prosecute intermediaries as a way of stifling dissent and maintaining greater political control over content online.

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