Legal News

Online bullies beware by Neil Hodge
Tue 31st Aug 10 - 13:10

The recent conviction of three Google executives for breaking Italian privacy law highlights the need for new legislation to enable more effective policing of the web.

Neil Hodge, International Bar Association

On 24 February this year, in a verdict that is likely to have ramifications for content providers around the globe, an Italian court convicted three Google executives for breaking Italian law by allowing a video to be posted online that showed schoolchildren bullying an autistic teenager.

The three employees – Peter Fleischer, Google's Global Privacy Counsel, David Drummond, its Senior Vice-President for Corporate Development and Chief Legal Officer, and George De Los Reyes, formerly Google's chief financial officer who had left the company – received suspended six-month sentences, while a fourth defendant, Product Manager Arvind Desikan, was acquitted. Judge Oscar Magi absolved the three of defamation but convicted them of privacy violations.

The video at the centre of the case was posted on Google Video in 2006 shortly before the firm acquired YouTube. Prosecutors argued that Google broke Italian privacy law by not seeking the consent of all the parties involved before allowing it to go online. Google's lawyers said that the video was removed as soon as it was brought to its attention and that the firm also provided information on who posted it. However, according to the prosecution, before being removed, the video was in Google's 'funniest videos' category for almost two months, reaching 5,500 views. Google said at the trial that pre-screening all YouTube content was impossible. Over 24 hours of video are uploaded to YouTube every minute of every day.

'We're very satisfied,' prosecutor Alfredo Robledo said in Milan once the verdict had been delivered. 'Protection of human beings must prevail over any business logic.' Vivi Down, an advocacy group for Italians with Down's Syndrome, which aligned itself with the prosecution's case, said: 'The aim was not to censure freedom of expression but to obtain a judgment on fundamental individual rights, among which is the right to privacy.' Oreste Pollicino, a law professor at Bocconi University in Milan, said the case meant internet service companies would have to take privacy more seriously. He said: 'This has to do with privacy, not with freedom of speech.

But speaking immediately after the verdict, Drummond said, '... if individuals like myself and my Google colleagues who had nothing to do with the harassing incident, its filming or its uploading onto Google Video can be held criminally liable solely by virtue of our position at Google, every employee of any internet hosting service faces similar liability.' Shortly after the decision, Matt Sucherman, Google's Vice-President and Deputy General Counsel (Europe, Middle East and Africa) posted on the company's blog under the headline 'Serious threat to the web in Italy' that Google would appeal this 'astonishing' decision because 'the Google employees on trial had nothing to do with the video in question… It is outrageous that they have been subjected to a trial at all.'

Google, China and 'free speech'

Throughout the trial and subsequently, Google has often said that requests to regulate internet content can amount – in some cases at least – to censorship and an attack on freedom of speech. Freedom of expression is enshrined under Article 19 of the Universal Declaration on Human Rights, which states that 'everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers'. Yet government censorship of the web is growing rapidly – from the outright blocking and filtering of sites, to court orders limiting access to information and legislation forcing companies to self-censor content.

According to the Open Net Initiative, a joint project between the universities of Oxford, Toronto and Harvard Law School, which aims to investigate, expose and analyse internet filtering and surveillance practices, the number of governments that censor has grown from about four in 2002 to over 40 today. In fact, some governments are now blocking content before it even reaches their citizens. Google products – from search and Blogger to YouTube and Google Docs – have been blocked in 25 of the 100 countries where it offers services.

Some democratically elected governments have national laws that prohibit certain types of content, such as pro-Nazi material in France and Germany. In Turkey, videos that insult the founder of modern Turkey, Mustafa Ataturk, are also illegal. Google says that it ensures such content is not available in those countries. However, the ISP's policy is to allow such content to be made available globally, arguing that national law cannot be applied internationally. This has resulted in YouTube being banned in Turkey, and persistent government interference in China.

However, Google is trying to win back friends. At the end of June it announced a 'new approach' in its ongoing battle with China over censorship. Until recently, the firm automatically redirected Chinese users to its unfiltered search site in Hong Kong SAR to get around censorship issues. Google has said it will now stop this after Beijing warned it could lose its licence to operate in the country.

Instead, Chinese users will be sent to a 'landing page'. Clicking anywhere on it sends them to the Hong Kong SAR site. Google said it was hopeful that this subtle change – where users have to actively click on a link to access unfiltered search results rather than being automatically redirected – would allow it to continue operating in China. Chinese law demands that companies use web servers based in China.

Google announced the changes one day before its Internet Content Provider (ICP) licence – necessary to operate in the country – was due to expire. However, at the time of going to print, there was no guarantee the Chinese authorities would accept the new arrangement. Google has had a long history of run-ins with the Chinese authorities. These escalated in January when the search firm announced that it was considering withdrawing from China altogether following a 'sophisticated' cyber attack originating from the country. The attacks targeted the e-mail accounts of Chinese human rights activists, along with the computers and infrastructure of Google and several other US firms.

Sucherman wrote: 'We are deeply troubled by this conviction for another equally important reason. It attacks the very principles of freedom on which the internet is built. Common sense dictates that only the person who films and uploads a video to a hosting platform could take the steps necessary to protect the privacy and obtain the consent of the people they are filming.'

He added: 'European Union law was drafted specifically to give hosting providers a safe harbour from liability so long as they remove illegal content once they are notified of its existence. The belief, rightly in our opinion, was that a notice and take down regime of this kind would help creativity flourish and support free speech while protecting personal privacy. If that principle is swept aside and sites like Blogger, YouTube and indeed every social network and any community bulletin board, are held responsible for vetting every single piece of content that is uploaded to them – every piece of text, every photo, every file, every video – then the web as we know it will cease to exist, and many of the economic, social, political and technological benefits it brings could disappear.'

Fabrizio Cugia di Sant'Orsola, partner at Rome-based law firm Cugia Cuomo & Associati and Vice-Chair of the IBA's Communications Law Committee, and Alexa Fricke, an intern at the same firm, say that the crux of the decision centred around uploaders not being specifically told of their obligations under local law, and the fact that Google capitalises on the number of people that use its services as a marketing tool to attract advertisers – the more people visiting its websites, the higher premium it can charge for advertising on ancillary sites.

'The decision clarifies that there is no statutory obligation on electronic services providers to pre-emptively control data being uploaded by clients on their systems or pages,' says Cugia di Sant'Orsola. 'However, there is an obligation to correctly inform third parties of all obligations which may apply under local law in the uploading of content and that they understand and accept the implications. In this case, the court found that third parties uploading content were not adequately informed, which triggers an offence under Article 167 of the Italian Privacy Code.'

According to Cugia di Sant'Orsola and Fricke, Google's executives were found guilty of violating the country's Privacy Code because they had a direct interest in pushing the volume of content uploaded on its free websites to generate advertising revenue on Google's ancillary AdWords service – essentially, putting profits before privacy. 'Google's executives acted with direct monetary intent with respect to the violation of their obligation to inform uploaders in a correct manner,' says Cugia di Sant'Orsola.

But the verdict has been widely criticised by some experts outside of Italy. Richard Thomas, the United Kingdom's former Information Commissioner and a consultant to privacy law firm Hunton & Williams, says that the case is 'ridiculous' and that the judgment gives privacy laws a 'bad name'.

He says: 'It is like prosecuting the Post Office for hate mail that is sent in the post. I can't imagine anything similar happening in the UK. The case wasn't brought by the Italian equivalent of the Information Commissioner but by criminal prosecutors and we don't know their motives. I find it worrying that the Chief Privacy Officer who had nothing to do with the video has been found guilty. It is unrealistic to expect firms to monitor everything that goes online.' 

Jonathan I Ezor, Director of the Touro Law Center Institute for Business, Law and Technology in New York, and an assistant professor of law and technology who also serves as Special Counsel to The Lustigman Firm, a marketing and advertising law firm based in Manhattan, says that 'what makes this event so troubling, and important not just for multinational corporations like Google but small startups, is that none of the three men had any connection with the incident at the heart of the case'. In fact, he adds, 'at least in the case of Fleischer, his conviction arose because he happened to work in one country, for a company based in another country, because of internet-based activity in a third country'.
This is not the first time that the borderless nature of the internet – and the conflicting legal regimes it crosses – has resulted in criminal cases brought against employees because of actions happening in another country. In one famous incident, after US-based Compuserve connected its service to parts of the internet in late 1995, its Munich-based General Manager, Felix Somm, was arrested and later convicted in Germany on charges of spreading pornography based upon sexually explicit content available via his employer's service, even though Somm (like Fleischer and his colleagues) had had nothing to do with either the creation or dissemination of the material. The conviction was finally overturned two years later.

However, other lawyers suggest that internet service providers (ISPs) may face similar legal battles – and potentially lose them – if they continue to argue that they are unable to check whether the content they host complies with local legislation, and that any regulatory move to enforce such rules amounts to an attack on freedom of expression. Professor Lorna Woods, Associate Dean for Research at London's City Law School, says that ISPs are on 'shaky ground' in claiming that it is impossible to comply with local privacy laws in different jurisdictions. 'The argument that it is difficult to comply is no defence at all. Every multinational company in the world has to comply with local legislation in each country they operate in and ISPs are no different,' she says.

Phil Hitchen, an associate in the corporate and intellectual property team at solicitors Ralli in the United Kingdom, says Google's defence that it is not responsible for the material uploaded onto YouTube is 'flimsy'. 'This video was on the website for two months and its presence was even highlighted as being one of the most viewed clips on part of the website.

Google is a multi-billion dollar company and it has the technology to remove such material. While freedom of expression and freedom of the internet is all well and good, there does need to be a degree of self-regulation about whether the material that is being uploaded is actually suitable and whether it is breaking the law,' he says. Joshy Thomas, an Associate in the intellectual property team at UK solicitors Thomas Eggar, says that while definitions of privacy may change from one country to the next, as well as the level of enforcement, 'there can be no public interest at all in allowing a video of a person being bullied to be shown on the internet', though he questions 'whether making a criminal prosecution case out of this, as opposed to a civil case as would be practice in the UK, was the correct route to go down'.

But Thomas believes that 'if ISPs want to retain a degree of self regulation as is currently the case, they need to be more mindful of the content that is posted on their websites and have appropriate mechanisms in place to pull offensive or illegal material quickly. Otherwise, tighter regulation is a possibility'. Some lawyers believe that the judgment may bring some clarity as to what ISPs are responsible for, and how they need to be regulated. Ann Bevitt, partner and Head of the London office's Privacy and Data Security Group at international law firm Morrison & Foerster, says that 'the judgment makes several issues very clear: that internet service providers must have a robust notice and takedown policy in place so that offensive or illegal material is removed, and that they provide sufficient notice to people uploading content that it must not be offensive, illegal or violate anyone's privacy.

Furthermore, ISPs should try to place more of the onus for the responsibility of the content onto the uploader'. Debate continues around whether there needs to be an overhaul of existing legislation regarding the internet. Chris Watson, partner and Head of the Telecoms Group at law firm CMS Cameron McKenna, as well as being Senior Vice-Chair of the IBA's Communications Law Committee, believes that if the web is to be policed properly, it needs new laws. 'Google has profited from being a very different animal to just being an internet search engine because it offers such a wide range of services. As a result, it is difficult for legislators to know just how to treat it, and under which legislation,' says Watson. 'I think that it is no longer sensible to assume that old legal systems are able to cope with the internet. I think that we need new laws.'

Neil Hodge is a freelance journalist specialising in legal and business issues. He can be contacted at neil@neilhodge.co.uk.