On February 27, 2013 the Court of Appeals of Milan released the reasons that led to the acquittal of three Google executives over privacy and defamation charges. The three executives were convicted in first instance for a violation of privacy and data protection legislation.
The case originated from a video posted on Google Video in May 2006, picturing a group of teenagers insulting and assaulting an autistic classmate. The video also included derogatory remarks directed at Vivi Down, an advocacy association for people affected by Down syndrome. The video became highly popular in a matter of weeks: it was ranked first in the most funny videos category and 29th in the most downloaded videos category. The Trial Court found the directors of Google Italy guilty of the crime of unlawful processing of personal data, having processed sensitive personal data without the express consent of the data subject and having failed to adopt appropriate measures and precautions to avoid such processing. (More on the history of the case)
No Liability for Defamation Charges
In a milestone decision that will likely shape case law over the next few years, the Court of Appeals of Milan upheld the acquittal of the Google executives on the defamation charges, holding that current legislation does not set forth an obligation on the part of internet service providers to prevent defamation, adding that such an obligation cannot be derived from data protection legislation, as the prosecutors purported to do. (The full reasoning of the Court of Appeals is available here)
No Liability for Privacy Charges
The Court of Appeals further overturned the conviction of the three Google executives on privacy charges. The first instance decision, in fact, concluded that Google unlawfully processed personal data as it failed to give a proper privacy notice to its users. The Court of Appeals, on the other hand, concluded that Google is not the controller of data pertaining to subjects appearing on videos. The controller for such data is the user who uploads the video on the Google platform, who also assumes the obligation to obtain any necessary consent and liability in connection with the processing of such data.
Limited Obligations of Active Hosting Providers
In its analysis, the Court of Appeals determined that Google qualifies as an active hosting provider – a definition that is not set forth in the European e-commerce legislation – since it has the possibility to filter, remove, search, index and potentially use the content generated by its users for advertisement purposes. While a number of Court decisions in Italy and throughout Europe have come to the conclusion that active hosting providers may be held liable for the content made available on their platforms, the Court of Appeals reached a different conclusion, more in line with United States case law on the matter (e.g., Viacom v. Youtube, which however was remanded to the Trial Court by a 2012 Appeals decision).
In particular, the Court held that Google cannot be subject to a monitoring obligation on all content uploaded by users before posting, not only because it is effectively impossible to carry out but also because placing such a monitoring obligation on Google would alter the nature of the service itself, would affect the functioning of the platform, and would ultimately conflict with other protected rights, including free speech.
In conclusion, while active hosting providers may be held to stricter standards than other kinds of providers, their automatic liability for all user generated content should be ruled out.