Wednesday, February 24, 2010

That worrisome test case

The Italian courts have now seen fit to convict six apparently randomly chosen Google executives (or in one case, former executive) and hand them six-month suspended sentences because of YouTube clips showing the bullying of a teenager with Down Syndrome. No word on whether anyone has gone after the actual bullies, though one expects they wouldn't be too hard to track down.

Google is naturally outraged over this, and plenty of people are nervous. If you can be tried or sued over content that other people put up on a site you provide the infrastructure for, why would anyone want to get into the ISP/infrastructure/public web site business at all? It's particularly troublesome that the case was criminal. For civil cases you can at least buy liability insurance.

Google claims that the Italian case is the equivalent of "prosecuting the post office for hate mail that is sent in the post." Fair enough. The Italian case certainly looks like overreach to me, but I'd be careful of carrying the analogy too far.

Hang on a second while I dust off my "I am not a lawyer" disclaimer. There, that's better.

Judging by the arbitrary selection of defendants and the wrist-slap sentences imposed, the whole thing smells like a test case, the idea being not to bust Google or its employees but to force the courts to consider the issue of liability for internet content. Then again, it might also be Signore Berlusconi flexing some muscle to warn off competition for his media empire.

Whatever the cause, the "we're just the post office" defense seems risky on its own. There are clearly cases where a provider definitely ought to share liability, for example when that provider has actively solicited a particular kind of material. If I put up a web site called and encourage people to post classified information on it, even if I never actually post a single such page, I would not expect to get by with such a defense [not that such a thing would ever happen, of course -- D.H. May 2015].

As with so many things in the law, intent is significant. Google's explicitly stated intent is "to organize the world's information and make it universally accessible and useful," and their actions are largely in line with that stated mission. I would certainly hope to see the Italian decision overturned. If not, everyone involved is going to have to take a deep breath and figure out how to continue doing business.

On a practical note, given the size of Google's pockets and the all-around undesirability of Google pulling out of Italy, there will be every incentive to get the thing settled. That might not lead to a very satisfying win. The worst case would be a drawn-out, highly-visible legal process and a more or less inscrutable ruling that effectively sends the message that "You'd better watch what goes on your site, unless you're Google."

The best case would be that it all blows over.

1 comment:

David Hull said...

Note to self: this was later overturned