Wednesday, February 11, 2009

Italy prosecutes YouTube executives on privacy law for apparent lack of pre-screening of material

There is a rather confusing situation going on in Italy with a prosecution of a few Google executives for "violating" Italian privacy law.

In November 2008 some teens put up a fight video of a disabled kid being teased on YouTube. The service did remove the offending video.

There seems to some subtle difference between European and American privacy law. In Europe, content service providers are required to take down libelous or privacy-invading material if notified. In the United States, under section 230, providers are generally not reliable at all for content posted by others on services they host (the DMCA safe harbor is a kind of complicated “exception” regarding copyright). Nevertheless, providers are not supposed to be responsible “before the fact.”

Nevertheless, prosecutors in Milan say that YouTube is itself a content provider not just a “communications provider” or ISP, and that its executives are liable for content posted that breaks the law, even prospectively. It’s a bit confusing. But the Italian prosecutors apparently claim that the "prospective" interpretation is used in conventional television broadcast so it should apply on Internet postings or at least videos.

Here is a story on “Concurring Opinions” by George Washington University law professor Daniel J. Solove (author of books on “The Future of Reputation” and “Understanding Privacy” as reviewed on my books blog Nov. 5, 2008). The story quotes and links to an explanation from The Privacy Advisor run by the International Association of Privacy Professionals.

The legal questions are murky, but they could certainly affect web hosting and publication services in Europe. It would be very harmful to “free entry” to require service providers to prescreen content.

Peter Fleischer has a blog on privacy issues here and his YouTube clip about his appearance in Milan, “Le Regole Globali Della Privacy” where he discusses international privacy law and photography in public spaces, is here.

Even given US law Section 230 protections, on my own sites I reject comments placed by others if they obviously would be libelous or would invade the privacy of a specific other person, as privacy is ordinarily understood.

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