Italy endangers the web

Italy is endangering the web. It convicted three Google executives for privacy violations for a video that was posted on YouTube Google Video that Google took down when it received a complaint. By holding Google liable for the actions of a user, the Italian court is in essence requiring Google and every other web site to review and vet everything anyone puts online. The practical implication of that, of course, is that no one will let anyone put anything online because the risk is too great. I wouldn’t let you post anything here. My ISP wouldn’t let me post anything on its servers. Google wouldn’t let me post anything on it’s services. And that kills the internet.

In America, we have a First Amendment for the web called Section 230, which every nation needs. Section 230 say, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” It gives a provider safe haven to take down content that violates laws without finding the provider liable. The American Congress and courts knew — with impressive foresight — that such protection was necessary to protect discussion and free speech online. Of course, the interpretation of the law is an evolving beast, but the principle is vital.

Google says of the Italian decision:

It attacks the very principles of freedom on which the Internet is built. Common sense dictates that only the person who films and uploads a video to a hosting platform could take the steps necessary to protect the privacy and obtain the consent of the people they are filming. European Union law was drafted specifically to give hosting providers a safe harbor from liability so long as they remove illegal content once they are notified of its existence. The belief, rightly in our opinion, was that a notice and take down regime of this kind would help creativity flourish and support free speech while protecting personal privacy. If that principle is swept aside and 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.

In the global, interconnected web, we live in constant danger of the lowest common denominator, of one court, legislature, or regime opening up liability that affects risk and behavior everywhere — like the U.K’s libel tourism, which enables miscreants to sue publishers if only one person saw the publication in the U.K.

This is why we need a set of principles protecting our freedom of speech on the web: not a law, not a treaty, nothing from government — see John Perry Barlow’s declaration of independence for cyberspace. In the Google/China situation — in which Google acted as a quasi-state to protect rights (albeit belatedly) according to its principles — Rebecca MacKinnon argues for a constitution for cyberspace but I worry that it would become overloaded with clauses and conditions. In American historical terms, I say we already have a Declaration of Independence and I’d skip over the Constitution to get a Bill of RIghts that begins with its First Amendment: governments shall make no law no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble. Start there.

  • http://www.gaspartorriero.it/blogger.html Gaspar

    Am I the only one to see the irony here? Had the same video contained a copirighted soundtrack, it would have been taken down by Youtube within seconds.

    • Jon

      it’s because right holder are very quick to file their DMCA complaints.
      Google removed the video in question after they received complaints that should have been the end for this story.

    • jay

      yeah but no one in google get arrested for the dcma take down.

    • http://www.intheeyesofthelaw.com Kimberly Houser

      You are not the only one. I think the difference has to do with lobbyists – corporations have better ones than individuals. http://intheeyesofthelaw.com/2010/02/22/inconsistency-in-isp-immunity-can-hurt-tort-victims/

  • http://blog.quintarelli.it Stefano Quintarelli

    … and, if google says that, then it’s true, right ?

    are you sure, sure, sure, sure, that Google was perfectly compliant to italian laws ?

    you know, nobody is going to jail by this decision and, AFAIK, no fines have been imposed.

    what happens if I come to do business in the US and I don’t comply with some US regulations, even formal ones like having a DMCA contact on my web site ?

    if I am convicted for not complying to some rule, would that imply that “the web is endangered” ?

    one year ago I forecasted this outcome http://bit.ly/aoG23J

    could maybe that Google was not 100% compliant with the privacy regulations ?

    why not waiting to read the Court motivations of the decision ?

    it seems to me that, by expressing a strong, definitive opinion, based only on one party’s report of the event, you are judging with [at least] the same incorrectness you are atributing to the court. (paradoxically)

    could it be that Google, effectively, was not 100% compliant and, knowing that,opposes fiercely to the decision because it would pose a compliance problem to the safe harbour provisions, eventually becoming a precedent that might impact its ability of processing european-originates private data ?

    I don’t know.

    I will wait to read the motivations; then I will express my opinion; was it a formal glitch, was a severe failure to comply, was it a court mistake.

    If it will be shown that it is a court mistake, I will be the first to claim for an appeal; you know, we have three degrees of decision in the courts.

    until I don’t read the judge’s decision, I will not judge the judge, based just on one side’s (interested) reports.

    • Josh

      I’m thinking the problem here may not necessarily be any kind of lack of legal compliance on Google’s part, but more along the lines of Italy’s position on internet freedom.

      The internet was built (in America, mind you) on the concepts of freedom of information and some degree of anonymity. Content posted was property of the owner and uploaded at their discretion that the content is legal.

      The internet has thrived as a source for media and free ideas as a result, and the idea that each and every piece of content from a country has to be screened to make sure it’s squeaky clean is a slippery slope to ideals held by countries like China, not to mention financially detrimental to the company doing the screening.

      • http://blog.quintarelli.it Stefano Quintarelli

        This is not the case in Italy, not in europe, although you are right, there are different views and contexts.

        first of all, and not to be forgotten, in [almost] all Europe we have civil law and not common law. this has some implications on the judiciary processes, so the US structure cannot be directly trasponed to europe.

        to clarify with an example, in the context of copyright, we have not a “fair use” provision to be interpreted by a judge, because it cannot be so. Wht is prohibited has to be clearly stated. (BTW, this is one of the criticla issues of the present ACTA treaties, as you might know, which tend to export to Europe US obligations, without the warranties of the fair use)

        AFAIK, in the US, in order for an intermediary to be exempt from responsibility (there are two unanimous decisions of the US Supreme Court), it is sufficient that the intermediary does not alter the meaning of the communication. A judge, under common law, can establish that.

        In EU, in order for an intermediary to be exempt from responsbility, it cannot modify in any form the communication; therefore we have provisions for mere conduit, hosting and caching.

        If one operator does not modify in any form a communication, then it is not liable. One more requirement: it must not be a commercial entity profiting from the communication content. (if I transfer an SMS between two parties and I charge regardless of the content, then I’m not responsible, let’s say, for racial hate content of the SMS).

        To simplify, if you deal with bytes, then you’re not liable.

        On my platform tehre’s someone encouraging racial hate ? then justice will chase him. Not the platform. A judge will decide that certain content must be taken down ? then the platform operator has to comply with judge’s ruling; if he does not, he is liable.

        Having (hopefully) cleared this, I must say that this is not the case with the present trial.

        we do not know why the judge has convicted some [former] google employees.

        Google says that it’s [likely] because they did not filter the content.
        I place my bet that this is not the case.

        In any case, neither of us can know, as the judge has not published his motivations yet. You know you have a ticket, but you don’t know yet why.

        the judge has judged google examining all documents from both parties; we cannot judge the judge just on what is written in a blog entry from one of the parties.

        let’s wait and see…

      • http://@jacopogio jacopogio

        just a detail: if Internet was built in the USA, then the WWW was invented by Europeans ;-)

      • http://ottodestruct.com Otto

        Actually, we do know what law the judge said they violated.

        “Prosecutors argued that Google broke Italian privacy law by not seeking the consent of all the parties involved before allowing it to go online.”

        If Google is required to seek consent of all parties, that effectively killed internet video. The person uploading the video should be the one that must obtain consent, not Google/YouTube.

        Google should immediately block all of Italy from uploading videos to YouTube.

  • http://www.dailypatricia.com patricia

    Anybody who has worked in digital business knows that different laws in different countries and different practices is a big obstacle for companies that have an international presence. But to suggest that everybody’s got to follow the AMERICAN way of doing things with free speech, etc. is just plain ridiculous. Good luck with that!

    • Matthew

      No, in this case everyone does have to follow the “american way” because it’s the only sensible way. Good try playing the imperialism card though.

  • Siva Vaidhyanathan

    Hi Jeff.

    I am afraid I am very confused by this piece. What is a “principle?” China has a “principle” of free speech, too. Look how much good it does.

    Why are you afraid of treaties and laws, i.e. real things in the real world that can be enforced.

    And besides, what incentive does Italy have to change its ways?

    Also, Sec. 230 and the DMCA are not “first amendments.” There is a very clear difference between a constitutional provision and a matter of statutory law.

    Why do you invoke and defend a statute, and then turn around and say you don’t want governments enforcing free speech on the Web?

    And once again, you gave credit to Google for doing something it has not done — stop censoring in China.

  • Josh

    So in Italy, are a person’s parents legally responsible for their child’s actions from birth to death? Do they have to make sure every purchase made is legitimate, isn’t harmful to themselves or others and that their taxes are applied properly?

    Just because your cake is digital, you can’t have it and eat it too. Especially after the time it takes to be vetted by the bakery, reseller and grocery store employee.

    • http://blog.quintarelli.it Stefano Quintarelli

      I am not an expert in this, but I’d guess that in the US parents are responsible for the children behaviour up to a certain age (in italy there are various degrees of responsibilities and various ages)

      but in certain cases, yes, they are legally responsible beyond these ages, until death. when the child is unable to will.
      shoud the parents die before the child, the court will designate a responsible tutor.

      Is it different in the US ?

      • Josh

        Sorry, I should turn down the metaphors a little. To answer the actual question, the parent is typically responsible from the child from when birth is pretty much legally mandated until the age of majority (typically 18 for a lot of things; it gets complicated) or until emancipated. The exceptions usually have to due with one being incapable of making their own decisions in which someone will have power of attorney and legal responsibility.

        To my intended point, if in fact, the issue is that Google didn’t gather consent from all parties before hosting the video, this could create a catastrophe for Italy and hosted content. Regardless of what the legal mandate in other countries may be, expecting a content host to gather consent from those filmed is almost a financial impossibility, not to mention the logistics involved in getting a hold of the video’s participants. It could very well bring hosted content of this sort to a screeching halt.

        Then again, this point could be completely moot since we’re not sure exactly what the legal implications of this case are yet. It could be something completely different.

      • http://blog.quintarelli.it Stefano Quintarelli

        Google lawyer, Mr. Pisapia, said it’s important that a pricinple was passed, that there is no “l’obbligo giuridico di un controllo preventivo di cosa viene immesso in rete”. (legal obligation for a preventive check of what is uploaded”

  • Rob Cooper

    If the appeal fails – surely Google (and probably MOST websites) will just block all uploads from Italy… effectively killing the internet for Italy.. but complying with their law?

    • http://www.familygreenberg.com/index2.php Brian Greenberg

      @Rob – you posted exactly what I clicked over to post. The world wide web is not in danger here – just the Italian web. The only question is whether they block uploads from Italy or access to Google’s web properties for Italians. In either case, the “economic, social, political and technological benefits it brings” will disappear from Italy alone, which will help force the courts’ hands. This, I believe, is how it should be.

      I disagree vehemently with the court’s decision, but then again, I would – I’m an American and I live with American sensibilities. If Italy wants to try it another way, they will only hurt their own citizens…

      • http://www.buzzmachine.com Jeff Jarvis

        Brian, American executives were found guilty in an Italian court for the actions of an American company. Libel tourism in the UK similarly reaches out past its boundaries. No, we are all at risk.

  • http://@jacopogio jacopogio

    Hi Jeff, as a pro journo, could you also post the text of the Italian Law as you posted the US First Amendment, Section 230 ?

    It is difficult to discuss foreign legal terms with just the Google press release, no ?

  • http://copyrightsandcampaigns.blogspot.com Ben Sheffner

    Even if Italy had enacted Section 230 verbatim, it would not have protected the Google execs here. Section 230(e)(1) specifically exempts federal criminal law from the statute’s immunity.

    http://www.law.cornell.edu/uscode/47/usc_sec_47_00000230—-000-.html

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  • http://wingsandravioli.cim Jim Milles

    For a comment on the Italian ruling in the context of Italy’s inconsistent policies and wacky politics, see http://crookedtimber.org/2010/02/24/google-and-china-italy/

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  • Freddie

    Let’s not overreact here. If YouTube is declared illegal, nothing dramatic will happen. Sure, Google will be upset but the industry will adapt. If all bulletin boards disappear, again no biggie. We’ll find a way to post “on edges” rather than on centralized aggregators. The content will simply move to the edge of the network, that’s all. The power of aggregators will be checked.

    Things evolve. If anything, this will be good for the freedom of expression because instead of uploading our videos and opinions to these “pseudo-platforms” like YouTube or Blogger, and giving Google the role of the only censor in the universe, we’ll be taking responsibility for what we’re saying and posting it directly on our own sites.

    Where’s the threat to free speech?

  • http://twitter.com/consultantrc Raul J. Colon

    I am trying to identify how these issue was solved or the benefits received by the Victim by convicting these three executives.

    I do agree on having an international (or cyber) law so the intent of the individuals being accused is taken into consideration.

    I don’t think it was the intention of the convicted executives to hurt the victim in the video.

  • http://sputnik.pl/ Michal Tatarynowicz

    Please note that this ruling was against EU law.

  • http://wendyboswell.com Wendy

    Personally, I’m less concerned about Google execs being convicted (we all know it’s not going to stick, let’s be honest) than I am about the core violation at the center of this story: four thugs terrorizing a disabled child, posting a video, and getting slapped on the hand with community service. Seems to me the wrong people are getting jail time.

    • http://www.buzzmachine.com Jeff Jarvis

      And that, Wendy, is the fault of the Italian courts, not Google.

      • http://wendyboswell.com Wendy

        Yes, I agree. It is completely pointless for Google execs to be getting any kind of jail time for this.

  • karakas

    Well in a country where they want to deny people without a broadcasting licence to post video on the net I’m not surpriced.

  • http://www.siliconvalleywatcher.com/ Tom Foremski

    Jeff, it’s not true that you wouldn’t be able to post anything. You simply need to moderate and check the content.

    This ruling actually helps traditional media organizations because they have large editorial teams.

    A newspaper would not have hosted and repeatedly broadcast a video of a disabled boy being beaten and insulted, unless it was a special investigation. Yet Google believes it’s a matter of Internet freedom for it to be able to host and broadcast that video.

    The Guardian story pointed out that the video “had shot to the top of the most-viewed list and been a subject of heated controversy.” Google knew about it and chose not to do anything about it. I’m not saying the ruling is a just one but it does open a very important question of how much responsibility should we expect from our Internet companies?

    We expect other institutions to have some measure of social responsibility but not the Internet companies? That’s not right.

    • Josh

      The problem with this stance is that a newspaper is a moderated publication. They have a review process before something is published for public consumption to ensure that only what the paper wants to be published is published. Services like youtube are a sharing ground and do not operate like this.

      Case in point are a number of “questionable videos” including cops getting shot on the side of the highway. If the material had been publicly released to media outlets, then it can be redistributed. If the video was say, stolen from evidence, then the agency can file a complaint to have it removed. The same thing happened here when it was reported that this video violated privacy laws.

      The analogy isn’t quite apples to apples, but the point is that the video is up for grabs until someone files legitimate complaints (DCMA, privacy, TOS violations, etc.) to have it removed. Now, the question may end up being whether or not there needs to be a policy change for how videos are uploaded from Italy or whatever change needs to happen to keep Google in compliance with their laws.

      • http://www.siliconvalleywatcher.com/ Tom Foremski

        Google could do what it did in South Korea, stop people from uploading to that country site and tell people to use a neighboring YouTube site in another country.

    • http://www.buzzmachine.com Jeff Jarvis

      Tom,
      I read your post and I disagree strongly.
      Oh, yes, you *could* upload things but lawyers would never let you; the risk becomes too great. Thus opportunities to create and share will be taken down.
      It’s terribly short-sighted to say that this is good for news organizations. I don’t want them as the gateway for my speech! What if your ISP told you you couldn’t blog unless you were edited by a paper.
      And where is the business model in that? Why the hell would they bother? Where’s the value?

      • http://www.siliconvalleywatcher.com/ Tom Foremski

        I think this incident is fascinating. And I also think that the issues in this case will follow Google around in many different ways.

        Also, it is worth noting that Google does monitor its content already. It has automated systems that will take down any videos that are found to violate copyrights. It does this mainly with videos using copyrighted music by comparing it to a databse maintained by the recording industry. So therefore, it has endangered its argument that it merely hosts content that is the responsibility of others. If its already monitoring its content it has lost the “hosting” protection provision.

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  • http://www.onesherpa.com Andee Sellman, One Sherpa

    The brave new world of the internet is built on resonsibility rather than obedience. If we remain controlled then how will we ever get a society that is built on acting responsibly. To get there however there will inevitably be some bumps in the road as people make mistakes and learn how to behave with the ‘new found’ freedom to publish.
    I don’t believe the answer is to punish the people who are trying to build platforms where resonsible people can communicate with one another.

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  • Chris Vlahos

    This post is unrelated to today’s blog, but I wanted to comment on one of Jeff Jarvis’ insights made in his book, “What Would Google Do.” Jeff began the book with a case study about Dell Computers – and how user blogs about Dell’s poor customer service spread to the point that Dell was forced to change its CRM culture.

    I was so impressed after reading WWGD that I invited Jeff to attend the annual Council for Alumni Association Executives (CAAE) conference this week in Scottsdale, AZ as our keynote speaker. The theme was “Alumni Relations 2.0″ and Jeff’s insights on the new media would have been a perfect backdrop for this conference. In fact, we purchased copies of “WWGD” and send them to each of the conference’s 100 attendees.

    The problem was that Jeff failed to return my e-mails inviting him to be our keynote. Not once, not twice, not three times, but four times. My e-mails to Jeff were ignored. Jeff, if you are Dell and I am the consumer, then you flunk. You flunk for not having the courtesy to respond. Your prerogative, I understand, but I am using your blog to lodge this complaint.

    All was not lost, however. We convinced Jeremiah Owyang from the Altimeter Group to keynote, and the attendees are still buzzing after his speech. Jeremiah is a leading social media guru … his blog at web-strategist.com is terrific … plus, Jeremiah returns e-mails.

    Sorry, Jeff. Thanks for nothing,

    • http://www.buzzmachine.com Jeff Jarvis

      I’m sorry, Chris, but your email went into the spam pile; have no idea why. In any case, I couldn’t have done it because I took my family to visit my parents, a slightly higher priority. I’m glad you had a good conference.

    • http://www.buzzmachine.com Jeff Jarvis

      Oh, and Chris, I found that your email came in while I was in the hospital having cancer surgery. Priorities, you know.

      • http://cheyannescampsite k.am.

        Mr Jarvis …..

        You know you made all that up to make him look like the rejected S****DA*S he is.

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  • http://www.woip.blogspot.com Patrizia

    I have the impression that the sentence was more a personal feeling that the applying of the law.
    If it was so simple to judge we would simply need computers with good programs which would give sentences much more appropriate than humans.
    Instead we have humans.
    Because every case is different and even though the principle is the same, stealing an apple is not as serious as stealing three millions.
    In this case the offensive part was that Google actually made money with ads seen by people who were eager to see a handicapped child abused and hit by children.
    The responsible are without any doubt the children who did it, but what kind of message does a video like that send to the audience?
    That committing a horrible crime is also some kind of entertainment.

    I understand that Google cannot be responsible of ALL what is uploaded and cannot control.
    But nevertheless something like YouTube, left in the hands of irresponsible’s could create huge damages to the life of others.
    How far can go freedom?
    Your freedom goes as far as my freedom goes.
    Freedom cannot be license of doing everything you like.
    At least in a “free” and “civilized” society.
    That is why we invented laws and Courts.
    Freedom on the Internet is a beautiful thing, but how long will we be able to allow this freedom?
    How long will we be able to stand a world where everybody can do all the harm he wants, including ruining my computer with viruses or botnets or whatever, my life saying lies about me, my future posting a video of my handicapped son brutally treated by his friends?
    What kind of example is this for the young generations?

  • Elmas

    Google as well as Microsoft (and the way things go in europe they’re probably eyeing Apple by now) should turn the tables around and threaten to quit the european “market”.

    I wonder what their reaction would be?

    You see, it is impossible to make it in a place where success is punished for the fact of being success:

    “You – insert Co. name – are too good, too efficient, too “big” for us to allow you to continue doing business and keep growing. Yeah, we know that no one is FORCED to use Google, or Windows or buy an iPhone, but that’s not the point. The point is that since we bureaucrats would never have gotten close to creating such successful companies on our own the only thing we can do to feel better about ourselves and at the same time justify our salaries, is to use FORCE (we can do that you know? we are the government) and make you come down to our bureaucratic “level the playing field” standards, unless of course, you are willing to help us out financially with our political campaigns. If you do, we will allow you the privilege of doing business here in -insert european country- but if you get caught we’ll put the blame on you for trying to sabotage the – insert european nationality- people just to, god forbid, make a profit. The part about us creating these “laws” on purpose just to get you to bribe us, that part will not be known to anyone. Besides, even if it is known, remember that we are the civil “servants” and you are the “evil” corporations. Guess on whose side are the people going to be on?”

  • http://blog.quintarelli.it Stefano Quintarelli

    Well, MS is turning to european antitrust against Google, like AMD did against Intel, major record companies against Apple etc..
    It seems that american companies, instead of leaving the EU market as you suggest, go to the EU trustbusters to ask intervention to level the playing field.

  • http://www.woip.blogspot.com Patrizia

    Europe is a market of 450 millions users.
    And Google, which is what everybody would do, goes wherever the profit calls.
    I am not against Google, a private company, an excellent private company, I am against limitless power.
    Monopoly never created a better world, a better market.
    And the task of a good government is to forbid that a company gets too powerful to be “above the law”.

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  • http://www.sergiomaistrello.it Sergio Maistrello

    Let me suggest you a good post *in english* from italian jurist Elvira Berlingieri about this trial: The Google Files in Italy, a short summary about the trial, two or three notes and some misconceptions

  • http://marcconnolly.com Marc Connolly

    Jeff, love the blog… but I think you’re a bit off the mark with this post. I would take Google’s official statement with a pinch of salt, as they are seriously misrepresenting the case that was made against them.
    As I explain in my blog, the prosecution argued that Google had failed to comply with its obligation under Italian law to make inquiries to the Ombudsman for Privacy before they launched the Google Video service. Had they done so, it is very unlikely that they would have been found guilty of any offence.
    I really do not think Italy has any intention of restricting Internet freedom. Judge Magi’s full reasoning will not be published for another week or so, and it’ll certainly make interesting reading!!

    • http://cheyannescampsite k.am.

      Judge Magi….as in the three kings Magi….the reasoning behind the decision will be verrry interesting to see indeed. Thank Goodness it is the Italian Law they are following and not some streetwise “strong arm-ing” other Italian law. Otherwise, I would think they were trying to intimidate people.

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  • Norton Barnacle

    Google is hiring in Shanghai. Not sure how principled its motives were (or are).
    http://www.businessweek.com/news/2010-02-23/google-china-starts-hiring-as-advertisers-shrug-off-withdrawal.html

  • http://www.cite-technologian.com/ Cebu Tech Blogger

    I don’t understand this. All I know is I’m convinced that the Google execs have nothing to do with the video after all. They are responsible, though – but not the extent that they will be convicted. just my 2 cents…

  • GGGGlyn

    Tttttt That’s unfair on the Italian courts. This video of kids bullying an autistic child was on the website for several months, not just a few days. Many viewers complained about it to Google who did nothing about it. That’s culpable negligence and Google should review their procedures. No-one’s saying that Google should vet everything posted on their site, but if numerous people complain about something then they should take a look.

  • John Adams

    I think Italy itself is a bunch of scum bag socialists. How they practice
    their way of life is scummy as well They feel as though they like to
    control the media as well as control what is put on American shows as well. I really don’t like the way that they have treated the Amanda Knox
    case that I feel that she still might be innocent instead of feeling the way that they do about it. Ifel that I would not waste a damn dime on going to such a rat hole myself which I have felt about it for a llong time
    anyway. I would rather go to the countries associated with the former
    Soviet Union.thank you