Many electrons have been spilled in response to the recent Italian court decision that found several Google executives guilty of privacy violations, after a video was uploaded to Google Video that showed an autistic boy being tormented by bullies. The vast majority of those writing about the decision — including Google itself, in a surprisingly heated blog post — rejected the court’s ruling as deluded, short-sighted, puritanical, misguided and just generally stupid and evil. The Wall Street Journal called it “madness,” and suggested it was “crazy, even for Italy,” while the Inquirer called it “a blow against common sense and Internet freedom.” Danny O’Brien of the Electronic Frontier Foundation called it “a threat to the Internet,” and the National Post said it suggested that “Fascism is alive and well.”
There have been a couple of dissenters from this consensus view, however: editor and SEO consultant Malcom Coles argued that the ruling was entirely justified, and that Google should accept its responsibilities to monitor content that is uploaded through its services, because it “runs a publishing platform” and “we hold companies responsible for what they publish or facilitate the publishing of.” Tom Foremski, who runs Silicon Valley Watcher, also argued that the decision was fair, and that Google should be expected to do a better job of moderating the content it hosts because it is “a media company.”
So is Google a media company? Or is it simply a form of Internet service provider, and therefore not directly responsible for the content it hosts? Such a distinction is crucial to the Italian decision. Google argued that the ruling contradicts a European Union directive that gives service providers safe harbor from liability for content they host (the U.S. has Section 230 of the Communications Decency Act, which gives providers of electronic services so-called “safe harbor” for content). But prosecutors argued that because Google handled user data — and used content to generate advertising revenue — it was a content provider, not a service provider, and therefore liable.
The question of whether Google is a media company or not, and if so how it should be treated, has been vexing observers for years now. Its primary business might be search and search-related ads and marketing, but with YouTube and Blogger and Buzz and other services in its stable, it’s also part content provider. In his blog post, Tom Foremski says:
Google is a media company — it publishes pages of content with advertising around it. Just like a newspaper. What’s not a media company about that? Google is not a technology company…Google is a technology-enabled media company. Therefore, it will come under similar regulations that apply to media companies.
The problem with that philosophy, however, is that not even traditional media companies can keep up with the volume of “user-generated content” they wind up either hosting or publishing (depending on your perspective). To take just one example, at the newspaper where I used to work, the Globe and Mail — which is relatively small compared to many of its U.S. counterparts — we got upwards of 8,000 reader comments every day. The staff did their best to moderate the obviously libelous and offensive ones, but it was like trying to mop up the ocean with a handful of paper towels. Should the Globe be liable for all of those comments? The law in Canada is unclear, although in the U.S. web site publishers are protected in the same way that Google is.
The benefit from those protections (which have been tested in a number of cases, including one involving Amazon) is that web sites can post information and host discussion forums and blogs and comments without being chilled by the prospect of a multimillion-dollar lawsuit or jail time for breach of some nuance of privacy or libel law. The tradeoff is simple: In return for the freedom to do this, which is seen (at least in the U.S.) as a social good despite the potential for bad behavior and illegal content, providers of services like Google agree to remove content when there is a complaint (as was done in this case). Requiring any other approach would be so unwieldy as to make such services virtually non-existent. As Google lawyer Matt Sucherman notes in his blog post in response to the Italian decision:
It attacks the very principles of freedom on which the Internet is built…[If] sites like Blogger, YouTube and indeed every social network and any community bulletin board, are held responsible for vetting every single piece of content that is uploaded to them — every piece of text, every photo, every file, every video — then the Web as we know it will cease to exist, and many of the economic, social, political and technological benefits it brings could disappear.
There’s ample reason to believe that Google will be successful on appeal, and that Italy’s decision is almost certainly an aberration. And it’s possible that the case only arose because Italian Prime Minister Silivio Berlusconi sees Google and its services as a threat to his interests, since he controls the leading commercial broadcaster (as well as a number of newspapers and other assets) and also has considerable influence over the state broadcaster. But the principle is still an important one: If Google — or any other media company, for that matter — is held to the kind of standards that the Italian court is trying to impose, we will almost certainly lose a core element of what makes the web such a powerful force for freedom of thought, commentary and inquiry.
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