Don't prosecute the messenger

February 25, 2010

I subscribe to the Google Public Policy Blog and get updates every few days. Today, I got sent a story about a case in Italy where three Google executives have been prosecuted for a video of an autistic student being bullied at school.

In late 2006, students at a school in Turin, Italy filmed and then uploaded a video to Google Video that showed them bullying an autistic schoolmate. The video was totally reprehensible and we took it down within hours of being notified by the Italian police. We also worked with the local police to help identify the person responsible for uploading it and she was subsequently sentenced to 10 months community service by a court in Turin, as were several other classmates who were also involved. In these rare but unpleasant cases, that’s where our involvement would normally end.

But in this instance, a public prosecutor in Milan decided to indict four Google employees —David Drummond, Arvind Desikan, Peter Fleischer and George Reyes (who left the company in 2008). The charges brought against them were criminal defamation and a failure to comply with the Italian privacy code. To be clear, none of the four Googlers charged had anything to do with this video. They did not appear in it, film it, upload it or review it. None of them know the people involved or were even aware of the video’s existence until after it was removed.

Nevertheless, a judge in Milan today convicted 3 of the 4 defendants — David Drummond, Peter Fleischer and George Reyes — for failure to comply with the Italian privacy code. All 4 were found not guilty of criminal defamation. In essence this ruling means that employees of hosting platforms like Google Video are criminally responsible for content that users upload. We will appeal this astonishing decision because the Google employees on trial had nothing to do with the video in question. Throughout this long process, they have displayed admirable grace and fortitude. It is outrageous that they have been subjected to a trial at all.

A very apt analogy for this case is that the postal service is not responsible for someone sending hate mail, and a telco is not responsible for the unlawful content of someone’s SMS or phonecall.

Clearly services like Google Video (and Facebook in the case of the Trinity Bates murder) can’t be responsible for someone uploading potentially illegal content. Their responsibility is to enforce their terms of service and remove that illegal content as soon as they are made aware of it.

I take responsibility for the content that I personally publish to this website, but I do not do the same for comments left here by you, my readers.

A poor precedent in my view, especially since the true culprit has already been convicted and sentenced.


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