Volume 08 Number 06
Monday, February 09, 2008

Pages 243-244

ROME — The first step of the criminal defamation and privacy trial against four top-ranking officials from Internet powerhouse Google Inc. concluded Feb. 3 in just 20 minutes, after a Milan Tribunal Court (Tribunale di Milano) judge gathered the procedural information he needed and adjourned until Feb. 18, when he will decide whether the case should continue. The Feb. 18 hearing will decide whether Italy has jurisdiction in the case, and, if it does, whether the Milan court itself has jurisdiction. The defendants are Peter Fleischer, Google’s global privacy counsel; David Drummond, the company’s senior vice-president and chief legal officer; George Reyes, Google’s former chief financial officer; and, according to prosecutors, Arvind Desikan, the European director of Google Video. According to Italian media reports, Google’s Fleischer was served a warrant when he arrived in Milan Jan. 23 to give a lecture at Milan’s Bocconi University. Sources told BNA that neither Fleischer nor any of the other principal defendants were in Milan for the Feb. 3 hearing. Google, Google-Italia, and Google Video are not named as defendants in the case.

Case Unusual, Not Unprecedented.
Italian legal experts familiar with the case told BNA it is unusual that company executives face personal criminal charges for the activities of the company that employs them, but not completely unprecedented. Since 1999, officials from at least five Italian ISPs or Web portals have been tried for abuses of Italian data protection laws, copyright laws, or public decency laws. But none served jail time, and none of the cases was as high profile as the case involving Google could prove to be.

Video Showed Taunts of Down Syndrome Boy.
The case stemmed from complaints filed by Down syndrome advocacy group Vivi Down against Google and four Turin youths. The complaints were based on a 2006 video that showed the youths falsely identifying themselves as members of Vivi Down to a boy with Down syndrome and then verbally and physically abusing the boy. The video was uploaded by one of the youths to Google Video—the company’s site for individuals to post videos—but removed within hours of a complaint to Google that it was offensive. With the help of Google, law enforcement tracked down the youths, who were prosecuted and sentenced by an Italian court to one year of community service in a center for children with Down syndrome. But the case against Google is more complicated. Guido Camera, the attorney for Vivi Down, said Google is in violation of Articles 13, 17, and 26 of Legislative Decree 196/2003 governing access to personal data—in short, that Google Video was a party to the defamation against Vivi Down. ‘‘The Italian law says that if a party has the power to stop something illegal from happening but that they did not then they share in the guilt with the party that performed the illegal act,’’ Camera told BNA Feb. 4. But a spokesman for Milan-based Google-Italia, the company’s Italian subsidiary, told BNA that the company was confident the case would be thrown out once the facts are studied in depth. ‘‘Google did everything asked of it by immediately removing the video when the complaint was made, to assisting law enforcement to track down the boys involved in the case,’’ the spokesman said. ‘‘It is difficult to argue that the company should have behaved differently.’’

Google Video: Content Site, Something Else?
At the heart of the case is whether Google Video—and by extension, other sites that host content posted by the public, such as Google-owned YouTube, Facebook, eBay Inc., or Craigslist—should be viewed as a content site akin to sites operated by newspapers and broadcasters, which can be held responsible for the information they host, or whether it is something different.‘‘Google Video is not a content site and it is not an ISP, it is something else entirely,’’ Pisapia Giuliano Pisapia, Google’s lead attorney in the case, told BNA. ‘‘Google is an instrument people use to locate content produced by someone else. It is a mistake to try to make it fit into the definition for something different.’’ Italian law that has been in force since 2003 states that Internet service providers (ISPs) are not responsible for monitoring third-party content, though they are required to remove the content if they receive a valid complaint about it. According to the prosecutor’s office, the company should be viewed as a content provider—the same category governing newspapers—and as such is responsible for the content it hosts. Pisapia, a former member of Parliament and one of Italy’s best-known lawyers, argued it would be difficult to find Google guilty because it is impossible to say what they should have done differently. According to a statement from Google’s Paris offices, about 1.5 million videos are uploaded to Google Video every week, making ad hoc monitoring impossible. ‘‘They could not have done anything differently,’’ Pisapia said. ‘‘They did not produce the video, and when they received a complaint about it they removed
the offending video within five hours. If the argument is that they should have evaluated the video before it was
posted that is a dangerous precedent because preventative monitoring is a kind of censorship, and it could kill
the Internet.’’

Google: Case Is ‘Totally Wrong.’
A Google spokesman at the company’s Mountain View, Calif. headquarters said the company believed the charges against it are groundless. According to the spokesman, ‘‘we feel that bringing this case to court is totally wrong. It’s akin to prosecuting mail service employees for hate speech letters sent in the post. What’s more, seeking to hold neutral platforms liable for content posted on them is a direct attack on a free, open Internet. We will continue to vigorously defend our employees in this prosecution.’’ The spokesman added: ‘‘As we have repeatedly made clear, our hearts go out to the victim and his family. We are pleased that as a result of our cooperation the bullies in the video have been identified and punished.’’ Camera, the attorney for Vivi Down, said the group is not seeking jail time against the Google defendants.‘‘We are simply trying to stimulate a debate about Down syndrome and about the role companies like Google Video should play in an open society,’’ he said.

Next Step, Options for Judge.
The next step in the litigation is the Feb. 18 hearing. If the judge rules that Italy lacks jurisdiction in the case, it will be thrown out. That is a possibility: Italy’s data protection authority said in a
Feb. 2 opinion that did not specifically reference the Google matter that it did not believe Italian data protection
laws were enforceable beyond Italy’s borders. That could be relevant, as Google is based in the United States, and the offending video was likely stored on the company’s servers in California. Google has made similar arguments in other contexts, including in a dispute with European Union data protection authorities over whether the EU Data Directive’s
restrictions on the use of personal data apply to Google. In a September 2008 letter to the Article 29 Working
Party, which is made up of DPAs from each of the 27 EU member states, Fleischer asserted that the company’s
Europe-based data centers are controlled by servers at its headquarters in the United States and therefore
are not subject to EU data protection law (7 PVLR 1344, 9/15/08). If the judge in the current litigation rules Italy does
have jurisdiction, he could also rule that the Milan Tribunal court does not have jurisdiction. That would slow
the case but not stop it, as it would start anew in a court in Turin, the city 50 miles to the west of Milan where
the act in question took place and where it was uploaded to Google Video—or the case could possibly be
moved to Rome. The case is being tried in Milan at least in part because both Vivi Down and Google-Italia are
based in the city. Meanwhile, the Spanish Data Protection Authority Feb. 4 announced that it had fined an individual for posting a taunting video on YouTube without gaining the data subject’s consent (see related report in this issue).

Third Individual in Case, Prosecutors Say.
Italian prosecutors told BNA Feb. 5 that a third individual is seeking damages against Google. Two officials from the Milan prosecutors office, who asked not to be further identified, said that in late 2005, a Milan-based businesswoman had a dispute with Google after a judge ruled that slanderous information about her had to be removed from the online archives of several Italian newspapers that had published the information. The newspapers did as ordered, but the information remained accessible via Google’s cache, prosecutors said. Italy’s Data Protection Authority ruled in favor of Google in 2006. Raffaele Zallone, the woman’s attorney in the 2005 case, told BNA that his client was part of the current case as a ‘‘parte civile,’’ a role that makes her eligible to collect damages even though her circumstances are not necessarily relevant to the current case. Milan prosecutors said in an interview with BNA that they had a document that showed Google Video should be seen as a content site. According to the prosecutors, an internal Google document showed that the company was alleged to have schemed to dominate the online video market in Italy by hosting more Italian videos than any other site.‘‘The document proves that Google Video is not a passive vehicle but rather an aggressive competitor seeking to differentiate itself from its rivals,’’ one of the prosecutors said. ‘‘That proves they were concerned about content and that they should be held responsible for the content they present to the public.’’
A Google spokesman in California declined to comment on the allegations about the paperwork from the
previous case.

BY ERIC J. LYMAN

Italian Municipality Files Suit Connected to Claims Against Google Officials

ROME — The ombudsman for the Municipality of Milan told BNA Feb. 5 that his office has filed a secondary lawsuit against four top officials of Google Inc. who are on trial in Milan for alleged criminal defamation and civil privacy violations. Ombudsman Alessandro Barbetta told BNA that his office tacked a civil suit onto the criminal trial against Google officials filed by Milan prosecutors. The ombudsman’s claim could increase any final monetary settlement by 50 percent. Barbetta said that Art. 36 of Law 104 from 1992 gives the ombudsman the right to join a criminal trial on behalf of a minor or a disabled person. In the matter before the Milan court, the central figure is both: a minor with Down syndrome who was verbally and physically abused by four Turin youths in 2006. In the episode, one of the offenders claimed to be a member of Vivi Down, a Down syndrome advocacy group, and the incident was made into a 191-second film that one of the youths uploaded to Google Video. The Google officials are charged with contributing to the defamation of the advocacy group, Vivi Down. According to Giuseppe Schiavello, a Rome-based partner with the law firm Macchi di Cellere Gangemi, it is not unusual for an ombudsman to join a criminal case such as the one involving the Google officials. ‘‘This secondary case will be decided based completely on the same factual circumstances as the primary case,’’ Schiavello told BNA. That means that if the primary case is thrown out because the judge rules that neither Italy nor the Milan court have jurisdiction, the ombudsman’s case will be rejected as well. If Google is found guilty but no financial settlement is awarded, the ombudsman will receive no cash. In most cases, a secondary case brought by an ombudsman would add one-third to any financial penalty charged against the defendants. But Schiavello noted that in cases involving disabled parties, the addition is upped to 50 percent. Financial damages won in the secondary case must be used for the public good. Barbetta, the ombudsman, said any settlement from the case would be used to pay for a Down syndrome public awareness campaign in the Milan area.

BY ERIC J. LYMAN