Privacy experts condemn Google conviction

The decision in Italy has caused widespread concern

The conviction in Italy of three Google executives charged with neglecting individual privacy has been heavily criticised by legal and privacy experts.

The executives were convicted of violating the privacy of a teenager with Down's Syndrome because Google failed to stop a clip being posted on the Italian version of Google Video showing the boy being bullied by four classmates.

Privacy organisations and lawyers contacted by V3.co.uk said they were shocked by the ruling, and have given surprisingly little endorsement to the court's decision, even though it upholds privacy and taps into growing concerns that individuals lack adequate internet identity protection. They argued that the decision is out of touch with modern law and internet freedom principles, and highlights the importance of establishing global privacy standards.

The experts also maintained that the ruling could affect the privacy policies of web service providers, as well as restrict the freedom with which content is shared over the internet. Google has said that it will appeal against the verdict.

Susan Hall, an IT lawyer at UK law firm Cobbetts, described the case as a " definition issue".

"It seems like the court exploited a technical term," she said. "They have drawn what is called the 'carrier exception' as narrow as possible. The exception protects BT from being sued if someone makes obscene phone calls on their network."

Hall was referring to European Union legislation which states that internet service providers (ISPs) are not responsible for monitoring third-party content on their sites, but must remove such content if they receive complaints.

Google claimed that it removed the offending video within 24 hours of receiving two complaints, but Italian prosecutors said that the company took much longer to remove the content. They also argued that the search company is an internet content provider, rather than an ISP, and is therefore in breach of the same Italian law that regulates newspaper and television publishers.

Apart from the discrepancies with EU law, the case is believed to be the first time that a criminal sanction has ever been pursued against privacy officers for their company's actions.

"It is extraordinary that the people accused did not even know that the offence had occurred but were still prosecuted. It is worrying that the spread of criminal responsibility has fallen on people in the organisation just because of the title of their position," Hall said.

"I have a suspicion that the court may have made a rogue decision and that it may have to go through the Human Rights Act. This could lead to an interesting discussion on what constitutes criminal liability."

Alex Brown, a partner at international law firm Simmons & Simmons, was equally surprised by the verdict.

"It is clearly an odd decision at a few levels. It is not a decision that privacy professionals elsewhere should get worried about, but people in Italy will take notice," he said.

"Google and YouTube cannot realistically monitor everything on their sites, and cannot really cut off all Italian people from posting content, so it is difficult to know what web firms such as Google can do to mitigate the risk."

Even privacy groups believe that the Italian court have taken the issue too far.

"The decision is as momentous as it is absurd. By attempting to protect privacy on a content platform, the court has made both elements almost impossible to function," said Simon Davies, director of Privacy International.

"We applaud the court's respect for privacy rights, but surely there must have been another way to approach that task.

"By criminalising open content provision, the court has created a dampening effect over the entire internet. I fear that this decision will be exploited by corporate content owners to further turn the screws on the publication of material."

Another privacy professional, who did not wish to be named, pointed to how " prior restraint" in the traditional US publishing market is an abrogation of free speech.

"It is wrong to hold service provider executives personally responsible unless it can be shown that they were knowingly personally involved in posting (or keeping available) the material," he said.

"There was the case of Felix Somm in the early 1990s where the vice president of CompuServe in Germany was prosecuted in Bavaria on the basis that the service allowed access to Usenet and thence to child porn."

Lisa Sotto, a partner at law firm Hunton & Williams LLP, suggested that the case highlights the fact that there are no global privacy standards, which is already an issue for the privacy community.

"Given the free flow of personal data throughout the world, it is a complex, if not impossible, task to comply with all the laws of the jurisdictions in which data resides," she said.

"Trying to monitor all content before posting is simply untenable. The position suggested by this case imposes an impossible burden on content providers.

"It would be impossible to seek consent in the manner that seems to be suggested by the decision and still have the same ability for users to post content.

"This decision places EU data protection law in a negative light. It makes EU data protection principles seem completely out of step with the realities of modern technology."

Sotto believes that the court's decision has damaged the free expression that the internet stands for, but is not likely to change how people share content.

"While I do not believe that this type of decision will be imported to other jurisdictions, it certainly will cause privacy officers to lose sleep," she said.

Tia Fisher, new business manager at web monitoring company eModeration, delved even deeper into the Google case.

"It does not seem reasonable to expect a publishing platform to take responsibility for all content that appears on it, and the ruling seems unfairly harsh," she said. "However, a crucial aspect is whether Google was guilty of not taking down the content quickly enough."

Google said that it took the content down "within hours", but the prosecution claimed that the video was up for two months.

"The other point of interest is that Italian prime minister Silvio Berlusconi has an enormous axe to grind in the form of his Mediaset network, the only major private TV network in Italy," said Fisher.

"Berlusconi's government is currently pushing through new measures that would give the state control over online video content, and force anyone who regularly uploads videos to obtain a licence from the Ministry of Communications.

"Although it is unlikely that this verdict would have been found in any other European country than Italy, it does throw into sharp focus the issues that social networks need to address in terms of protecting users."