Thursday, February 25, 2010

Administration Asks For Public Input On Intellectual Property Enforcement | Techdirt

Administration Asks For Public Input On Intellectual Property Enforcement | Techdirt

Court in Italy Convicts 3 Google Execs in Absentia for Privacy Violation Due to Delay in Takedown of Previously Flagged Objectionable Online Video

Italian Court Convicts 3 Google Executies in Absentia for Privacy Violation Due to Delay in Takedown of Flagged Online Video

Via Sylvia Poggioli at npr.org, the Associated Press informs us that:
"An Italian court convicted three Google executives of privacy violations Wednesday because they did not act quickly enough to remove [an objectionable] online video....

In the first such criminal trial of its kind, Judge Oscar Magi sentenced the three in absentia to a six-month suspended sentence and absolved them of defamation charges....

Google Italy, which is based in Milan, said it took down the video two hours after being notified by police, as is required by law. Prosecutors argued that viewers had flagged it well before police contacted Google, and the fact that it shot to the top of a 'most entertaining videos' list on the Italian site, had 5,500 views and 800 comments during the two months it was online meant it should have been noticed sooner. [emphasis added]

Thanks to the footage and Google's cooperation, [the young criminals responsible were] identified and sentenced by a juvenile court to community service. The events shortly preceded Google's 2006 acquisition of YouTube."
Read the full story here.

There is a saying in jurisprudence that hard cases often make bad law and this is such a case. No normal person wants to condone the online publication of the type of objectionable material in question, but there are no laws on the books - also not in Italy - that Internet providers have to pre-screen material posted to the Internet, nor are they required by law to screen such material within a given time period if such material is "flagged" by users as objectionable, nor are there standards in place for what kinds of "flagged" material must be taken down - or not. Who is to play the role of the "judicial God" in such cases?

Indeed, as noted in the posting cited above:
"In the United States, the Communications Decency Act of 1996 generally gives Internet service providers immunity in cases like this, but no such protections exist in Europe."
One reason for that of course is that the European Commission and its EU lawmakers are still asleep on many critical issues of Internet governance and competent leadership should be found in Brussels to move things forward.

The Italian judge in this case of course rightly wants to put an end to the uploading of this kind of material, but imposing criminal sanctions on executives of Internet providers is most certainly not the right legal path to do this, as it inflicts punishments upon those who are totally unaware - given the state of the laws - that they are committing a crime (within the definition of the law). That of course is an absurd result, legally seen.

Using the criminal law against Internet providers in court is also a flagrant violation of the basic rules that apply to the imposition of criminal sanctions. See Herbert Packer and The Limits of the Criminal Sanction. The criminal law is not a cure-all for all social ills.

It is up to the legislatures - and NOT the courts - to remedy the Internet situation by legislating appropriate - reasonable - standards. It is simply not the job of any judge to MAKE "his" law in a case such as the one at issue here, even if that judge might wish that the law on the books supported his well-meant intentions in this particular case.

This appears to be an instance which must soon be corrected by the legal system in Italy because it erodes the basic foundations upon which the entire Internet is built. One can not make Internet builders or their lawful representatives criminals in the courts just because of the many criminals out there in society who criminally use the new technologies that they have devised. That - my dear judge in Italy - can NEVER be the law.

Otherwise, we might as well shut down the entire mobile communications of the world because it is known by everyone that mobile (cell) phones are used for criminal purposes, also in the political sphere. Making executives of mobile communications companies criminally liable for such use would be as equally absurd as the Italian decision in this case.

The fault is not with Google. The fault is with Italy. Get your laws straightened out folks. Present the companies of the world with clear legislative standards in your jurisdiction and those companies will abide by them, simply as a matter of good business practice.

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