April 27 2010
On February 24 2010 the Court of Milan convicted three Google executives for violating data protection law. The case was brought in connection with a video on the Google Video website that showed a boy with Down's syndrome being bullied by his classmates (for further details please see "Google executives convicted for data processing violations"). In addition to violation of data protection provisions, the defendants were charged with defamation, but were acquitted on the latter charge.
The publication on April 12 2010 of the full text of the decision sheds light on this potential landmark case. This is the first decision worldwide in which Google executives have been convicted for a violation of local data protection law.
On reading the full text, it seems clear this is not a decision against internet freedom. Rather, the judge clarified that hosts have no duty of prior control over content posted on their websites; nor do they have a duty to prevent the posting of defamatory content by users. Nonethless, the judge found Google's executives liable for not having provided a clear and proper notice to users for data protection purposes.
The executives were convicted for the unlawful processing of sensitive personal data, which is punishable by between one and three years' imprisonment under Sections 167(1) and (2) of the Data Protection Code. According to the code, the term 'sensitive data' includes data relating to health issues, such as the medical condition of the boy being bullied in the video.
Unlawful processing of personal data occurs when:
Public prosecutor's interpretation: Google Italy as content provider
The public prosecutor considered Google Italy to be a content provider in connection with the processing of the personal data.
In the public prosecutor's view, the processing of the boy's data was carried out in Italy by Google Italy, although the videos available through Google Video were managed by Google Inc on servers located abroad. Google Italy's position arose from its commercial relationship with Google Video, which was managed by Google Inc. The public prosecutor argued that this relationship allowed Google Italy to use the Google Adwords system to make related profits from parties that paid to appear on the Google Video website through the use of keywords.
In the public prosecutor's view, this demonstrated (i) Google's role as data controller in respect of the videos on Google Video, and (ii) its intent to profit from the unlawful processing of personal data. In respect of the data disclosed through the Google Video service, Google Italy had a significant processing role, not merely providing hosting services, but acting as a content provider.
On this basis the public prosecutor argued that the Google Italy executives and the user who had uploaded the video were guilty of unlawful data processing, as Google Italy had processed the boy's sensitive data without first obtaining his consent.
Defence: Google Italy as hosting services provider
Counsel for the defence challenged the public prosecutor's interpretation and maintained that the code did not apply to Google Italy, as the relevant data processing had been performed in the United States - Google Inc's US servers process all personal data contained in all uploaded videos worldwide. Furthermore, it was claimed that there was no link between Google Video and the Google Adwords system. Therefore, there was no intent to profit from the unlawful processing of personal data.
As a result, counsel argued that Google Italy should be regarded merely as a hosting services provider, which would imply that it had no general duty to monitor content uploaded to a website. Hosting services providers are exempt from liability under the E-commerce Law (which implements the EU E-commerce Directive (2000/31/EC)), according to which an internet service provider is not liable for content posted on its website if it removes offensive content on receipt of notice. Google Italy had received notice from the Postal Police and had removed the video under Section 17 of the law. Therefore, only the user who uploaded the video should be held liable for the unlawful processing of personal data.
The court based its analysis on two points: the boy had not given express consent and had suffered damage as a result of the data processing. Therefore, it sought to establish whether the duty to obtain a data subject's express consent should apply only to the user or whether such duty should extend to Google Italy. The court held as follows:
The public prosecutor also sought a conviction for defamation. The court acquitted the defendants, stating that a general duty to monitor uploaded content does not apply to internet service providers (ISPs), such as Google Italy.
A conviction for defamation could not have been handed down unless the public prosecutor had demonstrated the ISP's intent to defame. The fact that the video had been published on the website for two months and had been added to the 'funniest videos' category by the user constituted insufficient grounds to find the executives guilty of defamation.
The decision raises several significant issues. Its presentation of the facts, in which Google's internal processes and structures are analyzed in detail, gives an unflattering view of a company beset by bureaucracy, unwieldy superstructures and a failure to assign personnel to cover certain key issues (eg, managing responses to potentially unlawful content flagged by users).
The legal grounds for the decision have been widely criticized as a threat to the freedom of the Internet. However, this view appears to be incorrect: the judge clearly stated that the principle of non-liability for hosting providers is safe and that the law does not make them subject to a general duty to monitor content posted by users, nor to a duty to prevent the posting of defamatory content from users.
Nonetheless, the judge should have offered further clarification of the code's scope of application. The code applies to processing carried out by controllers that are either established in Italy or established outside the European Union, but using equipment located in Italy. The court regarded Google Italy as the controller of the personal data, but it did so solely on the grounds that the company benefitted commercially from the sponsored content available through the Google Video service. This seems to be a weak justification for regarding Google Italy as the data controller; moreover, it is not arguable on a correct interpretation of the code.
The court stated that as a hosting services provider, Google Italy was not subject to a duty of prior control over the content posted by its users, but was bound to comply with the code in connection with the personal data contained in videos uploaded by third parties. The judge clarified that the data subject's consent should have been obtained by the video's creator and that a hosting provider cannot be expected to obtain written consent from the data subject. However, Google Italy - or, more precisely, its executives - had allowed the video to be uploaded without the relevant third party's consent, as users were given no clear and proper information on the need for such consent. Therefore, the executives were guilty.
This is arguably another weak point in the decision. To what extent should a hosting services provider be expected to inform users that they must obtain consent from the data subjects in their home videos? Does anyone believe that the video would not have been uploaded and that Google's liability would have been excluded if Google Italy had provided such information?
A few days after the publication of the final decision, the chairman of the Data Protection Authority gave an interview that in which he referred to a technical mistake in the court's decision. The chairman stated that under Section 13 of the code, the information for a data subject must contain information on the ISP's own specific means and modalities of processing, without reference to the processing of third parties' data, which is performed under the sole liability of the creator of the video.
For further information on this topic please contact Laura Liguori or Saverio Cavalcanti at Portolano Colella Cavallo Studio Legale by telephone (+39 066 976 541), fax (+39 066 976 544) or email (email@example.com or firstname.lastname@example.org).
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