Introduction

The recent postponement of the Milan criminal trial of four Google executives accused of defamation and privacy violations prolongs the uncertainty and concern among internet service providers (ISPs) and their executives of the potential extent of their liability for user generated content.

Background

The Milan criminal court hearing the case against four executives of search giant Google has delayed proceedings due to an interpreter falling ill. The trial will resume in late September, and its final outcome may have major ramifications for ISPs.

At the heart of the case is a debate about how much responsibility the ISPs have for content carried on their sites.

The case stems from a video that was uploaded onto the Italian site of Google Video in 2006, consisting of a teenager with Down’s Syndrome being bullied by classmates in Turin. The main plaintiff in the case is Vivi Down, an Italian support group for people with Down’s Syndrome.

Four Google executives, including Google’s global privacy counsel, are accused of defamation and violating privacy under Italian law for allowing the video to be posted online. They face up to three years in prison if found guilty.

Prosecutors argue that Google did not have adequate content filters or enough staff to monitor content. They also argue that the content, which showed the teenager being bullied by four students in front of a dozen others, was uploaded without the consent of all parties appearing in the video.

Google argues that seeking to hold ISPs liable for content hosted by them is a direct attack on a free, open internet, and has likened the charges against its executives as the equivalent of prosecuting mail service employees for the content of hate mail letters sent in the post

Relevant law

The relevant Italian legislation, which implemented EU Directive 2000/31/CE, states that ISPs that act as conduits are not responsible for monitoring user generated content posted on their sites and are not liable for that content, although they must remove it if they receive complaints.

The video stayed on the site for several months before Google received complaints and removed it. On receiving the complaints, Google removed the video within 24 hours.

Nevertheless, Italian prosecutors have argued that the search company is a content provider, rather than an ISP, and is therefore in breach of the same Italian law that regulates traditional newspaper and broadcast publishers.

Implications

There are a number of serious implications to the industry if the court were to find the executives guilty. As well as the personal liability for senior executives of ISPs (including in-house privacy legal counsel), the effect of a guilty verdict would be to effectively force the ISPs to limit significantly the carriage of un-monitored user generated content (or face the risk of similar charges in the future).

Likewise, if the court rules also that the posting of videos to such sites, including the likes of YouTube, requires the permission of all those appearing in them, it will again have a hugely limiting effect on what can be posted on those sites.