Google Executives Convicted of Violating Italian Privacy Laws for Not Removing Video Quickly

March 1, 2010 by David S. Seltzer

One federal law important in my work as a Fort Lauderdale cyber crime criminal defense attorney is the Communications Decency Act. As you might guess from the name, this is a federal law aimed at regulating online pornography, passed during the Clinton Administration. However, a provision not specifically aimed at pornography has become important for other reasons. Section 230 of the Act shields ISPs from lawsuits brought because of communications by users of their systems. That is, this law makes a provider like a cable company immune from a lawsuit over online speech by one of its users, as long as the provider didn’t provide or modify the speech. It does not apply to copyright violations, although the Digital Millennium Copyright Act also provides some immunity.

This law was on my mind last week when I read an article about an Italian court case against three executives at Google. According to a Feb. 25 article in the San Francisco Chronicle, the Googlers -- a chief legal officer, global privacy counsel and retired CFO -- were essentially accused of not removing an offensive video from their servers fast enough. The video in question shows an autistic boy being beaten and taunted by bullies at his school. It was on Google Video for two months before Italian police notified Google Italy about it; the company pulled it about two hours after notification. Nonetheless, the boy’s father and an advocacy group for people with Down syndrome complained, and the executives were prosecuted. They were convicted in Italy of violating that country’s privacy laws and given six-month suspended sentences.

The ruling was swiftly condemned in the United States, by private businesses and even nonprofits like the Electronic Frontier Foundation, which is often on the other side of privacy debates. The EFF’s Danny O’Brien said the ruling suggested that any business or individual with a global reach could be imprisoned overseas for other people’s acts. This gives Google and similar “intermediaries” an obligation to screen all of their content for speech that violates any country’s laws before putting it online, he said. And that essentially takes away everyone’s tools for speaking freely on the Internet. Others in the article pointed out that the convicted Google executives were not involved in any of the decisions made about the video, and that nothing Google did was illegal in the United States.

As a West Palm Beach cyber crime criminal defense lawyer, I agree that this is a troubling precedent for every Internet user. Different nations have widely different ideas about what’s acceptable online content. For example, China censors search engine results that make its government look bad; pornography is illegal in Saudi Arabia. Foreign laws like these are broken every minute in other countries. If the precedent set by the Italian ruling is adopted everywhere, that means ISPs and hosting sites are almost certainly liable for prosecution in other countries. And that could leave companies big and small with no choice but to filter their content very carefully, limiting what you and I can actually say in our own country.

Of course, the rulings would still have to be enforced. In this case, the Google executives’ sentences were suspended, so there’s no serious risk of jail time. But even if they were, Italy would need the executives to voluntarily come to Italy or a U.S. court to extradite them in order to put them in prison. And as a Miami cyber crime criminal defense attorney, I can promise that extradition would be an uphill battle in any American court, because the accusation must be a crime in both countries. However, this doesn’t mean the Italian ruling is harmless or a good idea, for businesses around the world or for Internet speech.