The conviction in Italy last week of three Google employees over a shocking video posted by a group of students on YouTube is extremely disappointing, and raises serious issues about how far providers of user-generated content platforms have to go in order to satisfy their legal obligations.
To be sure, Google does have a duty of care with regard to prompt removal of videos containing illegal or malicious content upon becoming aware of their existence. But the company cannot be held responsible every time someone chooses to upload these types of videos. Nor should they be expected to go to the extreme measure of pre-screening each and every video prior to them being made available for public viewing.
The Italian decision
The case in question revolves around a video which was posted by students at a school in Turin, Italy. The video in question showed them shamefully bullying an autistic schoolmate.
Although the video was posted in September 2006, Google staff were not made aware of its existence until two months later, when they received two requests to have it removed. Subsequently, the video was removed within hours, and the company assisted Italian police in identifying the individual responsible for its upload, who was later sentenced to ten months of community service (refer official company response).
But this did not satisfy the Italian courts, and a judge in Milan last Wednesday convicted three Google executives with violating Italian privacy laws in relation to the incident. Each was handed a six month suspended sentence.
Two troubling aspects
There are at least two troubling aspects of the decision:
1) that Google is being held responsible for content which it did not create and does not own; and
2) that the legal standard to which Google is being held does not accord with realistic commercial expectations.
Given that Google did not either own or create the video in question, neither the company nor individual members of its staff should be held responsible for its content. The same applies for all platforms of user-generated content (Blogger, MySpace, Facebook, Twitter etc). Users, not service providers, create and own the content. Therefore, it is individual users, rather than service providers (who merely provide a platform for individual users to share their creation), who should be responsibility for illegal or inappropriate material.
(Also troubling is the fact that the punishment applies not to the company itself but to individual Google employees. If Google committed any crime, surely the offense occurred at the corporate level and not at the level of any individual staff member. Any associated punishment should therefore apply to the company itself, not to individual employees)
Unrealistic expectations
More troubling still – questions the decision raises about the length to which Google and others have to go in order to satisfy legal requirements.
Given the extent of Google’s efforts in this case, it is hard to see what more the company could have done, and the fact that these efforts were not deemed to be sufficient raises some very troubling questions about the extent to which Google and others have to go in order to satisfy Italian law. Really, what else could they do? Pre-screen each and every video prior to upload? Pre-screen each and every blog post prior to publication on Blogger? How about Facebook – should they have to pre-screen each and every message or photograph?
No. Even if Google and others are deemed to have a duty of care regarding illegal or malicious content, such a duty should not extend beyond realistic commercial expectations.
Let’s hope the law adapts
Services like YouTube, Facebook and Blogger are subject to abuse by those intent on malicious or illegal activity.
But they also allow millions worldwide a platform by which they can create, share and connect with others.
Hopefully, over time, the law will adapt to the new media environment. But for now, decisions which impose unrealistic burden on providers of these services are very concerning for both the industry and the millions of users who enjoy the wonderful benefits which these types of services provide.
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