Italy: The Court of Milan Google Decision A Preliminary Legal Analysis

As widely reported, the court of Milan has recently convicted three officers of Google in connection with a video, uploaded on Google video, of a boy affected by the Down syndrome being bullied by his classmates.

The decision has been widely criticized as a threat to the freedom of speech on internet, etc. As we explain below, we believe that such widespread criticism may be excessive, at least based on the information available today.

There are several clues which show that the decision has, at least to some extent, upheld the "notice and take down" principle (that is, the rule which is applied in the context of the internet, which exempts a "provider" from liability if the provider removes offensive content upon receipt of a notice to this effect).

In this brief analysis we attempt, unlike most others, to analyze the decision based on the scope and nature of the conviction and the factual circumstances of the case. As the text of the decision it not available yet (and will not be for some time), our analysis is based solely on information available on newspapers and the web.

• The Convictions: on February 24, the Judge of the fourth criminal section of the Court of Milan Mr. Oscar Magi (Court of first instance) convicted three Google executives for the violation of the Data Protection Italian provisions. The judge convicted to six month imprisonment David Carl Drummond (former chairman of Google Italy, now senior vice president), Peter Fleischer (Google, Inc.'s privacy counsel for Europe) and George De Los Reyes (a former director of Google, now retired);
• Acquittal for Defamation: in addition to violation of Data Protection provisions, the defendants were charged also for defamation. All three defendants, together with Google's head of video for Europe, Arvind Desikan (who faced only the charge of defamation), have been acquitted of defamation. This is important because, as we will, see the acquittal on the charge of defamation sheds some light on the legal reasoning followed by the judge;
• Criminal Jurisdiction: in terms of jurisdiction, the court probably applied the so-called "ubiquity rule": a crime is punishable in Italy if any portion of the criminal behaviour or its effects take place in Italy (as the bullied boy lives in Italy, it was easy to assert jurisdiction based on this theory). This may in itself be very important as it confirms that jurisdiction defences based on where the servers are located, or where the defendant is resident, etc. should not carry the day in the context of breach of mandatory provisions (such as those relating to data protection). It remains to be seen, on the matter of jurisdiction, whether the reasoning which seems to be applied by the judge conflicts to any extent with the Italian Data protection rule which states that processing of data is subject to Italian law if either (i) the controller is established in Italy or (ii) the controller is established outside EU but it uses equipment located in Italy for purposes of processing personal data;
• Unlawful Processing of Sensitive Data: this crime is set forth in Section 167, paragraph 2, of the Italian "Data Protection Code" (Legislative Decree no.196/2003). This crime provides for imprisonment between one and three years. Sensitive data is, among other things, data relating to health (such as the boy's Down syndrome). This is the crime which the judge seems to have applied;
• Posting and Availability of the Video: the video of the disabled boy being harassed was filmed in May 2006 and was then uploaded on Google Video on September 8, 2006. It stayed on Google Video until removal on November 7. The video then (a) was available for a relatively long time and (b) featured prominently in some way;
• Actual Notice or ... "Constructive" Notice: in our opinion, the judge may have held (given the long and apparently prominent availability of the video) that Google's officers could and should have noticed the offensive video by themselves; in other words, the judge may be of the opinion that, in addition to an actual notice from third parties, a "notice" may also exist "constructively", so to speak. For example, the judge may be of the opinion that it was unlikely that the officers did not see the video (as apparently it was prominently featured for at least some time). Put it another way, the court possibly would not have found Google's officers guilty if the video had stayed online for a short time or was not prominently featured;
• General Duty to Monitor Content? If the above is correct, then the decision does not seem to establish a general duty to monitor content (which would be consistent with the "notice and take down" rule). On the contrary, the decision could theoretically be deemed consistent with such rule, if the rule is interpreted to apply not only to an actual notice but also to "noticeability", so to speak, whatever its source (including the featuring of a video prominently as a result of automatic ranking, cataloguing, tagging of videos carried out by the Google algorithms). In addition, if the court had deemed applicable a general duty to monitor posted content (equating in some way Google's liability to that of an editor) it probably would have convicted the defendants also for defamation;
• Ranking Algorithms: as to the ranking algorithms, the court does not seem to have held that they are equivalent to manual cataloguing, a theory which indeed some have suggested and which (if upheld) would have been totally inconsistent with the notice and take down rule (and would have had a much more negative impact on Google);
• Notice and Take Down Still Applies: if the decision applies the "notice and take-down rule" (albeit in a "noticeability" version), then it means that the court believes that this principle may indeed apply to Google; this, as is known, is a conclusion which many have challenged (as, they argue, it is not entirely sure that Google falls within the exceptions of the e-commerce directive: mere conduit, caching, etc.);

In conclusion, while Google understandably is totally unhappy about the decision (and needs to press this point very strongly), it may actually be that the decision is, if not positive, at least not as negative as it could have easily been. Google, in fact, may be deemed to have scored a couple of points: (a) Google's algorithms are not equivalent to a manual cataloguing and tagging; (b) Google may benefit from the notice and take down rules, and is not subject therefore to a general duty to monitor.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.