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Summary:

An Italian court found three Google executives guilty of privacy violations for a video uploaded to the company’s site, focusing attention on a key question: Is Google a service provider or a media company? And if it’s the latter, what responsibility does it have for content?

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.

Related content from GigaOM Pro (sub req’d):

Post and thumbnail photos courtesy of Flickr user Stitch and iStockphoto.

  1. You were doing fine until you had to put Berlusconi into this. It is not possible that all media, italian or foreign, attribute to Berlusconi all crap that is in Italy. I am an Italian and I don’t like Berlusconi, but everybody seems to give him just too much credit for good or bad.
    All crap we have in Italy is due to italians and so is everything good there is in the country, and there’s plenty of it.
    This court ruling is clearly controversial and delicate as all the debate around it does show. The judge applied the law that is currently in place in Italy; yes, he did it strictly and perhaps a bit blindly, but that is the law. We all hope the appeal overthrows the decision, but let’s not say that a) Italy is crap because of this and b) all is down to Berlusconi.
    Legislation governing internet and social media is new and complex and the internet is going too fast for legislators to keep up. Remember pirate bay? That wasn’t Italy was it?

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    1. Thanks, Andrea — that is a fair point. Berlusconi is a magnet for any negative attention that gets focused on Italy, but it is probably wrong to blame him for everything.

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  2. I agree with Andrea Favale, this is one particular piece of Italian madness which cannot be laid at Berlusconi’s door. If for no other reason that Berlusconi and the judiciary are basically at war with each other – and so neither side would willingly do the other any favours.

    Many analogies have been used to describe UGC sites, from the postal service to newspapers. Personally, I prefer the notice board analogy.

    If someone were to pin-up an obscene photo on a (physical) notice board, should anyone other than perpetrator be held responsible? I think not.

    The fact that the notice board is viewable by millions rather than perhaps hundreds of people doesn’t affect that underlying principle.

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    1. That’s a good analogy, David — thanks for the comment.

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    2. Well, the analogy is a bit handicapped. Let me explain why.

      People are free to pin a photo to a notice board. And for fear of obscene photos or of valid notices being pulled down illegally, the owner / caretaker of the notice board is free to put a glass door on the board and keep it locked. This allows only credible content to be posted on the board, but obliges the caretaker to own up for the credibility of each notice posted there.

      This is the case with Google. Let’s not conclude too quickly that any random user can post any content, and hence Google is not liable. Hosting services for UGC is non-trivial (cost-wise, technology-wise,.. etc)and we all know that. More over, by hosting the content, Google makes money. Content hosting is not a community service – it is a business platform. And associated with a business platform, are liabilities.

      Of course I’m not suggesting that Google censor all the UGC they get. But I clearly disagree with statements disowning responsibility for hosting UGC.

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  3. The decision of the italian court was related to privacy, not defamation. As noted here:
    http://www.nytimes.com/2010/02/28/weekinreview/28liptak.html
    there is a different idea of privacy in Europe. That’s the important fact.

    We don’t know the reason of this sentence (it’s published after 90 days), but I don’t think that will destroy the freedom on the internet. On the contrary it could help estabilish it, against the threat of companies and governments that want to control their citizens.
    I found really weird that in a country that doesn’t have a national ID because of the fear of the government, people loves that private companies could do anything with their data.

    There are many legitimate reasons because a person could want to use internet and have his/her life transmitted to everyone.
    For instance, a woman with an abusive ex-husband:
    http://gizmodo.com/5470696/fck-you-google

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  4. It’s too simplistic to point to the Italian decision as a threat to the freedom of the Internet.At what point does Google have responsibility for the use of its platform. My understanding is that Google had to be badgered for months before taking down the video. Is that accurate?

    It feels like there are some nuances to this issue that are being lost in this media driven debate. If the Google executives actually had behaved like decent human beings would this have become a celebrated court case?

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    1. That’s an excellent point, Patrick. It’s not at all clear how long Google took to remove the offending video. Reports range from a minutes to months. A key part of the safe harbour provision is that offending content be removed in a timely manner.

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    2. According to a report in the San Francisco Chronicle:
      “The video drew 5,500 views in the two months before Google Italy pulled it down two hours after being notified by police.” http://j.mp/8X0H4w

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  5. This remind me of India. Bazee.com(no ebay.in) partners were arrested when a self made sex scandal mms clip was being sold by some guy on their site.

    Apparently the two had nothing to do with it, they also removed it from their site and still they were humiliated and chargesheeted.

    Rumors have it that that case was why bazee.com was sold of ebay for cheap, because the founders just wanted to get out of the legal mess.

    Law makers are crazy.

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  6. It’s a shame that freedom of expression must be overruled due to commercialization. If this same video had instead been posted to a personal website free of ads, this case would not have been relevant. It’s also interesting to note that courts in the U.S. ruled in favor of free speech regarding fan page postings on Facebook. http://j.mp/dtzEIe

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  7. Nice article Matthew. I didn’t say the verdict was “fair” because convincting the Google execs was unfair.

    But it is unfair of Google to claim Internet “freedoms” and turn a blind eye to its social responsibilities.

    Press freedom is hard won, and it is worth protecting because generally, journalism takes itself seriously, it believes in providing fair and accurate reporting, it is usually in sync with its culture, and its society.

    Google showed that in Italy that it is out of sync with the culture and the values of society. That video was controversial for months. A newspaper or TV station would not have hosted and shown it in the same way Google did. They might have used it as part of a feature but they would certainly not want to antagonise large numbers of people.

    Yet Google was unaware the video was a problem until the police told it to take it down. That kind of behavior then leads to unfair court judgements such as this one, and it can also lead to much more, in terms of how Internet companies might be regulated in the future.

    I’ve said this before, if a business is not in sync within the society it exits in it, if it doesn’t understand the culture, then it won’t be successful. That’s what happened to Google in Italy.

    If Google wants certain freedoms it needs to also admit to certain responsibilities – you can’t have one without the other.

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    1. Thanks for the comment, Tom — but I’m not sure losing this court decision proves that Google is “out of sync” with the rest of society, either in Italy or anywhere else. When the video was brought to the company’s attention, they took it down. What else would you have them do?

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  8. Hi, just to be clear, I didn’t argue that “Google should accept its responsibilities to monitor content that is uploaded through its services”.

    I don’t think that Google should vet or preview video. However, it must have robust processes in place to deal with illegal or abusive content.

    Until the judgment is published, we don’t know the reasons for the ruling – but it looks like the Italian courts felt this wasn’t the case. From what I’ve seen reported of the case, users HAD tried to flag the content as offensive. But Google only acted when the police got involved.

    There’s another case at the moment in Australia where Facebook has got into trouble over content on its platform (http://www.theaustralian.com.au/business/media/faceless-no-more-facebook-admits-errors/story-e6frg996-1225835350571). Obviously, these cases are difficult for UGC publishers to deal with – but difficulty doesn’t exempt them from responsibility in ALL cases.

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    1. Thanks, Malcolm. I guess that raises an interesting question: How many people flagging a video as abusive should it take before Google has to remove it — one? A dozen? A hundred?

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  9. It’s a very simple equation Matthew. A service by a company operating in Italy is violating an italian law in the field of privacy, therefore someone in that company must pay for this. As the CEO of a company, if my company violates a law, whatever law, I pay.

    Does it make sense? In general, I’d say yes. On the other hand, in this specific case, I think the judge had to hire better consultants in order to let him fully understand what it was all about. This makes the difference.

    As an Italian, I’m not proud of this and I can assure you that this “privacy law” is leading to other serious problems in my country. And, I agree with Andrea Favale, Berlusconi is not really the problem here.

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    1. It’s not just the privacy question, though, Luca — the central issue is whether Google should be treated as a service provider, and therefore not directly responsible for content (as determined by EU law) or whether it should be a media company. That’s the part that interests me.

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  10. [...] On Google, Italy and the Future of Media [...]

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  11. [...] that personal data. In other words, any ISP or Net intermediary working within Italy is now co-responsible for the legality of content containing “personal data” (video, text, audio or other data) before anyone [...]

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  12. Something should be said about the collision of ideologies concerning privacy. The way in which privacy rights are perceived and handled differs greatly between two nations such as the U.S. and Italy. The challenge is for cloud computing firms like Google to figure out how to accommodate these ideologies on a global scale. http://j.mp/aMaCd4

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    1. Yes, that’s a good point, Mark — thanks for the link.

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  13. [...] after finishing Ken Auletta’s fine new book about the monster from Mountain View.  Matthew Ingram gets you up to date on the Google convection in Italy and the fact that Google IS a m….  And Danah Boyd reports from Harvard about evolving privacy norms in the context of teens using [...]

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  14. This case was destined to blow up a storm and probably a storm was needed to get people really thinking about the difference between a service provider and a media company. Whichever of the two Google is considered to be, the real difference should only be a question of timing. A media company that looks at content before publishing is clearly liable for what it publishes and therefore should never publish material of this nature. A service provider that does not (and cannot possibly) vet all content before it is published must necessarily have a very efficient system in place to respond immediately to complaints regarding offensive material even if this means creating an efficient watchdog group within the company. All media that is uploaded gets seen within a very short space of time and I am sure that offensive material gets signalled to Google very quickly. Google must be equally quick in response even if it means devoting resources to this kind of watchdog activity. I believe that a service provider can only really be held responsible if it does not respond quickly and efficiently to signalled abuse.

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  15. There’s an ongoing idea to review internet regulation worldwide, even in the US: http://is.gd/9rEF0

    “In fact, “leaving the Internet alone” has been the nation’s Internet policy since the Internet was first commercialized in the mid-1990s. …. This was the right policy for the United States in the early stages of the Internet, and the right message to send to the rest of the world. But that was then and this is now.”

    There are a number of analysis worth reading:
    http://is.gd/9rEY2 (NYT: when EU/US privacy ideas collide)
    http://is.gd/9rF8p (FT: Is google now a monopoly ?)

    IMHO, there’s a fundamental issue here: (US) Free speech vs. (EU) Privacy http://is.gd/9rFkr

    in EU Treaty Privacy rights come before free speech (Privacy/Dignity: Recitals 1, 7, 8; Free speech: Recital 11)

    it’s a EU-wide issue; Germany’s Privacy Authority is requiring EU level initiatives with US because of failure of compliance of Safe Harbor agreements between EU and US by US companies. http://is.gd/9dNtR

    re. the Judge decision, we don’t know it yet. We know we have a ticket on the windshield, but not yet why.

    Although I’ve been vocal towards regulation in italy
    (http://is.gd/9poKg), in my view this specific outcome was foreseeble.

    I suggest reading this: http://is.gd/9pp4j

    Let me point out that
    1.- we dont’ know the motivations yet
    2.- this decision can (and very likely will) have 2 levels of appeal (and, BTW, the decision is 6 months in jail and according to italian regulations for any conviction to less than 2 years one does not go to jail, unless he’s been convicted before)

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    1. Thanks for the comment, Stefano — and for the links.

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  16. Government’s all over the world construct highways, bridges and tunnles as a way to better faliliate communication and travel for their citizens. There are road rules which drivers are expected to follow and adhere to such as the speed limit. If a driver ignores that speed limit and crashes his/her car and gets injured in an accident, is the Government responsible for the injury?
    Google is an information highway which leads users to their desired search result, how you use it and what you upload to this information highway is also a users responsibility. I think the judgement is wrong.

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  17. [...] Just about everyone and their brother seems to think that the recent convictions of Google execs for violation of privacy was absurd. Were they? Matt Ingram at Giga tries to look at the decision from a more balanced perspective. In the end, however, he goes along with the mainstream view — this is trouble. Here is the link. [...]

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  18. A recent Harvard grad’s thoughts on the recent Google-Italy debacle and its illustration of the ideological dichotomy of liberty and privacy between the US and EU:

    http://stevenduque.com/2010/03/liberty-vs-privacy-the-us-eus-ideological-collision-on-the-internet/

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  19. [...] d’accès à Internet ou intermédiaire qui travaille sur le territoire italien est maintenant co-responsable de la légalité des contenus  “données personnelles” (vidéos, textes, audio ou autres données) avant même [...]

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  20. well for me google is more likely to be a media company since it is bringing up great and freash news to the public every day.

    Thanks,
    John

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  21. [...] hafa, ny ISP na ireo mpanelanelana amin'ny tolotra Net miasa ao Italy amin'izao fotoana dia miaraka tomponandraikitra amin'ny fampanarahan-dalàna ny votoatin-javatra miaty “fiainana manokan'ny olona” (video, lahatsoratra, feo na hafa [...]

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