It's an old adage that bad cases make bad law, and today an Italian court made bad law that could sap the vitality from the Italian Internet and impact Internet freedom far beyond the Italian peninsula. The court convicted David Drummond, Google's senior vice president of corporate development, Peter Fleischer, global privacy counsel, and George Reyes, a former chief financial officer, of privacy violations for allowing a user to post an offensive video on the Google Video service. The three were cleared of defamation charges.
This case began in 2006 when four teenagers in Turin filmed themselves bullying a disabled schoolmate and uploaded the video to Google Video. Law enforcement eventually notified Google of the distasteful video and Google removed it within hours of notification. The four teenagers were appropriately reprimanded and the case should have ended there. However, in 2008, an overzealous Italian prosecutor then brought criminal defamation and privacy violation charges against four Google employees who had no involvement with the video itself, either in its production or review.
As I described in my previous post about this case, the prosecutor's actions fly directly in the face of years of best practice in Europe, not to mention EU law itself. The 2000 EU e-Commerce Directive- similar to the law in the U.S. -- provides broad immunity to technology intermediaries that provide platforms for content posted by third parties. Protection against liability for these important platforms for speech ensures that they are not forced into the role of content gatekeeper and encourages the development of innovative services and technologies. To be sure, content that violates terms of service may be removed by the platform provider when notified (as happened in this case) and the original creator or poster of content can still be held liable; this foundational legal framework as been critical to the economic vibrancy of the Internet and to Internet freedom more broadly. It has led directly to the explosion of web 2.0 -- and all the user-generated content it enables, from the political (user accounts of protests in Iran and Xinjiang) to the mundane (your latest cat video). Without protection from intermediary liability, providers of social media platforms would have to review each bit of user-generated content before it can be posted. With today's stunning conviction, the future of social media in Italy has been thrown into doubt and the hand of censors has been strengthened.
If the court in the Vivi Down case has demonstrated a lack of regard for these core principles, then Prime Minister Berlusconi has made clear that he wants to junk the legal protections for online intermediaries altogether: Berlusconi's government is calling for the extension of TV broadcast regulations to websites that host video content. Sites where video is regularly uploaded (like YouTube) would have to obtain a broadcasting license. These rules would also require vetting of online video content before it can be posted and imposes liability on the technological platform for content posted by users that is defamatory, infringes copyright, or is harmful to minors. A new administrative authority would decide what video may be allowed online and what must be taken down.
Berlusconi's government claims it is simply responding to a 2007 European Union directive to bring national media regulations more in line with EU norms in the age of on-demand media. However, this Directive was never intended to disrupt the norms laid out in the 2000 E-Commerce Directive that immunize intermediaries - norms that have become best practice in the most vibrant information -- and technology-driven economies in the world, in Europe and elsewhere. In contrast, the proposed measures would make it nearly impossible for companies to offer user-generated content platforms like YouTube to Italian users, and would greatly chill innovation in web 2.0 products and services. If Italy adopts this approach, Italian Internet users may find themselves left out and left behind in the next Internet revolution. Considering that Berlusconi owns Italy's only major private TV network, the proposed rules raise the specter of commercial protectionism at best, and censorship by bureaucracy at worse.
The government has not finalized these new measures, and there is still time to turn back from this ill-informed approach. And the Vivi Down trial may not yet be at an end: Google has said it will appeal and the case may find its way to the European Court of Justice, which would -- we hope -- find that Google cannot be held liable for content posted by a user under EU law.
However, these developments do not bode well for Internet freedom. The judge's actions in the Vivi Down case and Berlusconi's proposed measures set a very disturbing precedent that endangers free expression and innovation on the Internet. While Italian Internet users would certainly lose out, the stakes are much broader: authoritarian regimes all over the world are all too happy to point to such actions by democratic governments to justify similar policies for politically nefarious reasons. States committed to democratic values and a free and open Internet simply cannot afford to relinquish the moral high ground in exchange for short term political grandstanding or personal commercial gain.