An Italian judge convicted three Google executives of violating Italy's privacy law on Feb. 24, 2010, after a 2006 user-generated Internet video of teenagers bullying a disabled boy was posted on a Google-maintained website. The three executives each received a six-month suspended sentence.
According to a February 24 New York Times story, Italian prosecutors charged Peter Fleischer, Google's chief privacy counsel, David Drummond, Google's senior vice president and chief legal officer, and George Reyes, the company's former chief financial officer, with criminal defamation and violation of the boy's privacy. A fourth defendant, Google senior marketing manager Arvind Desikan, was charged only with defamation and was acquitted. The defamation charges against all the defendants were dismissed.
According to The Times story, the charges originated with a complaint to police from Vivi Down, an advocacy group representing individuals with Down syndrome. Vivi Down sought to have the video, which showed a disabled Turin teenager being pushed, taunted, pummeled with objects, and insulted by classmates, removed from Google Video, a website that allowed Internet users to upload videos in order to host and display them on Google's servers.
The clip was available on Google Video for about two months after it was first posted, The Times reported, and was viewed over 5,500 times, making it to the top of Google Italy's "most entertaining" video list, although Google said it pulled down the video within two hours of receiving a formal complaint from Italian police.
According to The Times, prosecutors successfully argued that because Google had used the video to generate advertising revenue, it should be considered a content provider, not a service provider, and therefore was in violation of Italian privacy law, which prohibits the use of someone's personal data with the intent of making a profit.
Judge Oscar Magi, who issued the conviction, wrote a 111-page ruling stating his reasoning which was published on April 12, 2010. According to a April 12 New York Times summary of the opinion, Magi did not say that Google had to monitor all the content uploaded to its platforms but suggested that the company could be more vigilant and said that Google had an obligation to make European privacy policies clear to third-party users of its platforms. The full opinion, in Italian, is available online at http://speciali.espresso.repubblica.it//pdf/Motivazioni_sentenza_Google.pdf.In a February 24 post on Google's official blog, Matt Sucherman, Google's vice president and deputy general counsel for Europe, Middle East and Africa, wrote that the judge's decision "attacks the very principles of freedom on which the Internet is built."
"Common sense dictates that only the person who films and uploads a video to a hosting platform could take the steps necessary to protect the privacy and obtain the consent of the people they are filming," Sucherman wrote. "[W]e and our employees will vigorously appeal this decision."
In a February 25 post on Law.com, Samuel Buffone, a defense attorney for the three Google executives, said the verdict was a huge setback in terms of the precedent it could set in Italy and the rest of Europe, and that monitoring third-party content posted to Google-owned sites is impossible. "You could now have an obligation to monitor every single thing posted on YouTube or Facebook," Buffone said. "This is the sort of thing that could break the Internet."
Buffone added that the Italian charges would not have stood in the United States, where legislation, such as portions of the Communications Decency Act, 47 U.S.C. § 230, specifically protect Internet hosts such as Google from liability for the content users post to their sites. Buffone also said that U.S. authorities had refused Italian officials' requests to charge the Google executives in the United States.
Alfredo Robledo, one of the Italian prosecutors, said in a February 24 Associated Press (AP) story that the ruling reflected European views that personal privacy is a "fundamental right," and that the interests of an individual should come before those of a business.
"This is the big principal [sic] affirmed by this verdict," Robledo said. "It is fundamental, because a person's identity is a primary good. If we give that up, anything can happen." Robledo said that a company like Google could find ways to easily monitor its content, and that it was inappropriate for Google to profit from advertising revenue generated from content that violated privacy laws.
Some American legal experts disagreed, arguing that the case raised troubling questions for all American companies that do online business overseas. In a February 25 story in the San Francisco Chronicle, Danny O'Brien, an international outreach coordinator of the Electronic Frontier Foundation, said that the verdict "absolutely is a threat."
"If intermediaries like Google or the person who hosts your Web site can be thrown in jail in any country for the acts of other people and suddenly have a legal obligation to prescreen everything anyone says on their Web site before putting it online, the tools for free speech that everyone uses on the Net would grind to a halt," O'Brien said.
Drummond, one of the convicted Google executives, said in the February 24 AP story that he was "outraged" by the ruling. "This verdict sets a dangerous precedent," Drummond said, and it "imperils the powerful tool that an open and free Internet has become for social advocacy and change."
In a February 26 New York Times story, Nicole Wong, an attorney for Google, said that foreign opinions, such as Magi's, could impact users outside of Italy. Wong said Google's policies on invasion of privacy were best applied uniformly around the world, and that trying to meet all the differing local standards "will make you tear your hair out and be paralyzed."
Jane Kirtley, director of the Silha Center and professor of media ethics and law at the University of Minnesota, emphasized the difference in European and American perspectives on privacy in the February 26 Times story. "Americans to this day don't fully appreciate how Europeans regard privacy," Kirtley said. "The reality is that they consider privacy a fundamental human right."
3rd Circuit Allows Trespass Suit against Google to Proceed
In an opinion published on Jan. 28, 2010, a unanimous panel of the 3rd Circuit U.S. Court of Appeals allowed a Pennsylvania couple to proceed with their trespass suit against Google for photos taken for the use of Google's "Street View" program.
Boring v. Google Inc., 38 Media L. Rep. 1306 (3rd Cir. 2010), arose when Aaron and Christine Boring discovered that Google had taken "colored imagery of their residence, including the swimming pool, from a vehicle in their residence driveway months earlier without obtaining any privacy waiver or authorization" for use on Google Map's "Street View" program. The Borings alleged that their road is clearly marked with a "Private Road, No Trespassing" sign and that, in driving up their road to take photographs for and in making those photographs available to the public, Google "disregarded their privacy interest."
Street View is a feature on Google Maps that offers free access on the Internet to panoramic, navigable views of streets in and around major cities across the United States. To create the Street View program, representatives of Google attach panoramic digital cameras to passenger cars and drive around cities photographing the areas along the street.
The Borings sued Google in the Court of Common Pleas of Allegheny County, Pennsylvania, asserting invasion of privacy, and trespass, among other claims. Google later moved the suit to the U.S. District Court for the Western District of Pennsylvania, and filed a motion to dismiss. The district court granted Google's motion on Feb. 17, 2009. The court dismissed the invasion of privacy claim by stating that "the Borings were unable to show that Google's conduct was highly offensive to a person of ordinary sensibilities." The court dismissed the trespass claim by stating that "the Borings have not alleged facts sufficient to establish that they suffered any damages caused by the alleged trespass."
The Borings appealed, and the 3rd Circuit upheld the dismissal of their invasion of privacy claim, but reversed the dismissal of the trespass claim. "No person of ordinary sensibilities would be shamed, humiliated, or have suffered mentally as a result of a vehicle entering into his or her ungated driveway and photographing the view from there," Judge Kent Jordan wrote for the 3rd Circuit panel in dismissing the invasion of privacy claim, comparing the activity to a person knocking on the front door of a private residence. "Indeed, the privacy allegedly intruded upon was the external view of the Borings' house, garage, and pool - a view that would be seen by any person who entered onto their driveway, including a visitor or a delivery man. Thus, what really seems to be at the heart of the complaint is not Google's fleeting presence in the driveway, but the photographic image captured at that time. The existence of that image, though, does not in itself rise to the level of an intrusion that could reasonably be called highly offensive."
In reversing the district court's dismissal of the Boring's trespass claim and remanding the case for trial, the court stated that the legal standard for trespass is "exceptionally simple," and is defined under Pennsylvania law as an "unprivileged, intentional intrusion upon land in possession of another."
"Here, the Borings have alleged that Google entered upon their property without permission. If proven, that is a trespass, pure and simple," Jordan wrote, although he emphasized that the Borings would have to prove that they suffered harm as a result of the trespass to collect more than nominal damages. "[I]t may well be that, when it comes to proving damages from the alleged trespass, the Borings are left to collect one dollar and whatever sense of vindication that may bring, but that is for another day."
Andrew Pederson, a spokesman for Google, responded to the verdict in a Jan. 29, 2010 story in The Legal Intelligencer. "I don't think there's any way to construe this as a loss for Google," Pederson said. "We're pleased with the decision, as it upheld the dismissal of all but one of the claims, which the plaintiffs did not win. It has only been remanded to district court."
- JACOB PARSLEY
SILHA FELLOW AND BULLETIN EDITOR