Posted at Privacy Law Blog, 4 Feb 2009, for Fair use only
Several Google executives, including the Company’s global privacy counsel, Peter Fleischer, will face criminal charges in Italian court stemming from Italian authorities’ two-year investigation of a video posted on Google Video showing a disabled teen being taunted by classmates. The video, posted in 2006, depicts four high school boys in a Turin classroom taunting a classmate with Down syndrome and ultimately hitting the young man over the head with a box of tissues. Google removed the video on November 7, 2006, less than twenty-four hours after receiving multiple complaints about the video. Nonetheless, Fleischer and his Google colleagues face criminal charges of defamation and failure to exercise control over personal information that carry a maximum sentence of three (3) years.
According to the International Association of Privacy Professionals, which broke the story on February 2, 2009, the charges against Fleischer are believed to be the first criminal sanctions pursued against a privacy professional for his company’s actions. Under European Union legislation that was incorporated into Italian law in 2003, Internet service providers (“ISPs”) are not responsible for monitoring third-party content posted to their sites, but are required to remove offensive content if a complaint is received. These laws offer to ISPs protections that are similar to those found under U.S. law in Section 230 of the Communications Decency Act of 1996. But Italian authorities, specifically Milan public prosecutor Francesco Cajani, are prosecuting Google as an Internet content provider, rather than as an ISP, and Italy’s penal code states that such providers are responsible for third-party content on their sites. Cajani believes that Google, and its executives, violated this provision by allowing the 191-second clip to be uploaded to its video site.
On February 3, the Italian judge hearing the case — which is expected to be ongoing for months — suspended the proceedings until February 18 to consider procedural issues, but Google maintains that it did not violate any laws with respect to the video posting. Also on February 3, the City of Milan joined the case with civil charges that Italian lawyers have cited as the rough-equivalent of class-action suit in the United States. The city, according to Rocco Panetta, an Italian lawyer with Portolano Colella Cavallo, is representing several individuals it claims were injured by Google.
In a statement released on February 2, Google expressed sympathy for the victim’s family, but insisted that “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.” Google’s public policy counsel for Google Italia, Marco Pancini, further commented that “We are confident the process will end in our favor.”