Wednesday, February 24, 2010

Italy convicts executives over YouTube posting, seeming to imply that service providers must review everthing that users post in advance

Three executives at Google have been convicted and given six month suspended sentences by a court in Italy after a video making fun of a boy with Downs syndrome had been posted on YouTube (in 2006 in or near Turin, Italy). The video was removed by YouTube some time after it was brought to its attention (as a “terms of service violation”) but the Italian court seems to believe that Italian law would have required Google to review every video before being uploaded, according to many reports.

The company said that services like Blogger and YouTube could not exist if the service providers were required to vet every item before posting. So the company will appeal the verdict. It’s possible, of course, that the services could be blocked in Italy alone, or any other country enforcing prospective downstream liability in this fashion; however the company says it plans to continue business in Italy as usual. In the United States, Section 230 and the DMCA safe harbor both express the concept that provider downstream liability should be limited.

The BBC news story today is here.

According to Jane Wakefield, BBC Technology reporter, no other western country seems to be trying to prosecute cases such as this. But Italy claims that its privacy law requires a service provider to seek the consent of the parties involved before letting it go online. Italy may be planning other bizarre prosecutions. Italian law has come under worldwide scrutiny since the Amanda Knox case. Observers think that Italian prosecutors apply the law and interpret evidence capriciously (this came out in an interview with the Knox family on Oprah recently) and target people to prosecute for local political motives.

There is another question as to how service providers can be affected worldwide by unusual application of law in one country. ISP’s seem to be dealing with China, possibly by quarantining it in the way they handle the company. They are prepared to deal with radical or underdeveloped legal systems in third world countries, especially in the Islamic world. But when a modern western country like Italy tries to impose “prior restraint” or downstream liability, it is seen as a threat to freedom for everyone. "User-generated" content in a free entry system could not exist if every item had to be reviewed and cleared in advance by a third party.

Reuters in India has a detailed account by Manuela D'Alessandro here. The story claims that the video stayed up for some time after it was brought to the company’s attention, but possibly that attention had consisted mostly of user comments and complaints. Service providers do provide a way to flag objectionable content for quick review.

The story was briefly noted on ABC Good Morning America on Wednesday Feb. 24.

On Feb. 25, ABC reported briefly that the Secretary of State Hillary Clinton would look at this problem.

The New York Times also offers important coverage in article by Rachel Donadio, "Larger Threat Is Seen in Google Case", link here. This paragraph from the article is very significant, concerning turf-oriented politics in Italy regarding communications: "In Italy, where Prime Minister Silvio Berlusconi owns most private media and indirectly controls public media, there is a strong push to regulate the Internet more assertively than it is controlled elsewhere in Europe. Several measures are pending in Parliament here that seek to impose various controls on the Internet. Critics of Mr. Berlusconi say the measures go beyond routine copyright questions and are a way to stave off competition from the Web to public television stations and his own private channels — and to keep a tighter grip on public debate."

Google also has its own "Official Blog Post" here.

I cover this "domestic" potential of this problem on the "BillBoushka" blog -- please navigate to it through my Blogger Profile to continue reading about this problem.


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