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Why Italy was right to find Google guilty

February 25, 2010 20 Comments

Freedom of speech and the future of the internet are at stake. An Italian court has found Google executives guilty after some students filmed themselves bullying a boy with Down's syndrome [1] and then uploaded the clip to Google Video. The students were later convicted for their actions.

According to Tom Watson MP, the decision to hold Google liable for publishing the video:

"is the biggest threat to internet freedom we have seen in Europe. The only people who will support this decision are Silvio Berlusconi and the governments of China and Iran. It effectively breaks the internet in Italy."

Well, Tom, you can make that Berlusconi, the Chinese and Iranian governments - and me.

Why it's right to find Google guilty

Google has made several statements arguing that the ruling is wrong - as have a lot of other people. Here's why I think they're wrong.

They took the video down straightaway: no they didn't

Google says it took the video down as soon as it was notified:

"We took it down within hours of being notified by the Italian police."

But the prosecutors say it actually took two months:

"The prosecutors accused Google of negligence arguing the video remained online for two months even though some web users had already posted comments asking for it to be taken down."

So either they didn't realise people were reporting the video as offensive (due to an ineffective flagging system, or by not properly communicating the system for reporting video) or they were ignoring the reporting (negligence).

I'm not sure which it is. But if people are complaining that your platform is allowing abuse of a vulnerable boy, and you do nothing about it - either because you've ignored complaints or have no effective way to discover those complaints - it is right you are held to account.

The executives had nothing to do with it: wrong

According to a Google spokesman in Italy:

"We will be appealing against this verdict because the people in question had nothing to do with the uploading of the footage, they did not film it and they did not view it."

No, but they are senior executives at the company - responsible for the systems put in place to stop abusive content being published. If those systems have failed, it is right that senior executives are held responsible.

One of those found guilty is reported as saying:

"The judge has decided I'm primarily responsible for the actions of some teenagers who uploaded a reprehensible video to Google video."

Again, no, they've decided your systems for dealing with publishing videos of bullying and abuse of a boy were inadequate.

They can't preview everything: irrelevant

The Telegraph reports that lawyers for Google:

"argued that regulation would be impossible as it would have to preview thousands of hours of footage before it was uploaded every day onto sites like YouTube."

First, tough. You have set up a platform that allows people to publish things - some of which it's illegal or immoral to publish. If you can't police it properly, that's not our fault. Second, no one's arguing you should preview everything. But you need an adequate system for reporting material, and you didn't have one that worked in this case.

YouTube is like the post office: no it's not

According to the BBC, Richard Thomas, the UK's former information commission, says:

"it is like prosecuting the post office for hate mail that is sent in the post".

It is exactly NOT like that. The postal system is not a publishing platform that allows people to broadcast what they think to anybody who wants to watch. Google Video / YouTube is.

The post office is a private, push system - if I want you to receive something by post, I have to send it to you personally. No one knows what's in the letter until you open it.

But if I want anyone to watch a video, I can leave it up on YouTube and forget about it - anyone can then see it by choosing to go and view it. I don't need to be involved in them seeing it, and anyone can see what the subject of the video is.

This is why Google can and ought to have systems in place to alert it when abusive videos being published, whereas the post office can't and shouldn't.

YouTube is a like a box of tissue: barrel scraping

Mike Masnick, co-founder of influential technology website TechDirt, is reported by the Telegraph as saying:

"Honestly, I can't see how anyone would make a ruling in this manner and think that it makes sense. You would think that suing the execs of the company that made the tissue box [which was thrown at the boy in the video by his bullies] would make more sense than Google's execs. Why not charge the execs of the company that made the camera that was used to film the incident? It's hard to hear about this ruling and not consider the Italian legal system to be a joke."

Well, if someone made a dangerous product, they can be prosecuted. But we don't normally hold companies responsible for misuse of their products.

On the other hand, we do hold companies responsible for what they publish or facilitate the publishing of if they are negligent.

Google runs a publishing platform. It doesn't send out individual videos in boxes that were used to hit someone. It has ongoing control over that platform in the way that the tissue-box and camera manufacturer do not.

To sum up

Google has form with not bothering with the consequence of what it allows people to find via its service - such as when anyone could uncover stories about 12-year-old "dad" Alfie Patten even though the UK media were (and still are I imagine) bound by an injunction.

It's not alone. Go on Facebook today, and you'll find all sorts of pages devoted to exacting revenge in the case of Baby P's parents - the problem here being that it was baby Peter's mother and boyfriend who were gulity. His other parent, the father, was completely innocent. These pages remain up. Should Facebook really not be accountable for what it allows to be published?

The issue here is not one of freedom of the Internet. And I am not suggesting that these services should pre-vet what users publish.

But Google should have had better systems in place, or should have adhered to its own process. One of these things didn't happen, and as a result senior executives have been held accountable. Let's leave the last word to the prosecutors:

"We are very satisfied because by means of this trial we have posed a serious problem: that is to say, the protection of human beings, which must prevail over corporate interests."

Let me know what you think in the comments ...


[1] It seems he had autism rather than Down's syndrome, in another triumph for journalism.

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  • The whole "freedom of speech" thing is a giant red herring. Freedom of speech is supposedly a safeguard allowing people to speak out against govermnents or those in power.

    Using it as a get out of jail free card for instances of bullying and abuse is really bad form.

    As for Google - you've summed it up perfectly. If they had a decent complaint/review/action system, this incident wouldn't have become as much of a problem.

  • Jonathon says:

    reasonable and well considered

    ... but if Google say 2 hours and prosecutors say 2 months, which one is right??? did it take 2 months since someone flagged as inappropriate, in which case, that's pretty negligent?

  • Good arguments. I'm now completely on the fence with this ruling, as at first I was in the "How can they do this?" camp.

    A good read there!

  • [...] Coles has this morning posted his own counter-argument – Why Italy was right to find Google guilty. This covers the intricacies of the case in a little more detail, outlining exactly why the [...]

  • Raymond says:

    Interesting observations. From our own experience the YouTube reporting system is indeed not infallible.

  • Adam Banks says:

    Wrong, wrong, wrong.

    Firstly, the judge HAS decided that Google execs were "responsible for the actions of some teenagers who uploaded a reprehensible video". You say "no", but then repeat the same thing in different words. To blame someone for not having the system you think they should have for dealing with something is to presuppose that it is their responsibility to deal with it.

    Secondly, the postal service is NOT only one-to-one, so this doesn't undermine Richard Thomas's crucial analogy. The direct mail I get through my door goes to millions of other people too. If it contained an offensive image or false advertising, the postal service would NOT be liable.

    Thirdly, "the protection of human beings must prevail" is the same tired old Orwellian fallacy used to justify detention without trial, torture of terrorist suspects and totalitarian censorship. In liberal societies we believe freedom of speech gives us vital protection.

    Of course it must have limits; but the suggestion that anyone involved in making available any form of content - even by operating an automated system (such as YouTube) where routine human intervention is entirely impractical - ought to be obliged by law to destroy that content immediately when first contacted in any way by any person who claims it offends them, is irreconcilable with a free and open society.

    Finally, even if you think Google should rethink its policies, a sentence of imprisonment (even suspended) is manifestly excessive and inappropriate. Google had nothing to gain from this content being posted and in no way invited, encouraged or condoned it; in fact, YouTube's conditions of use expressly prohibit this kind of material.

    This ruling IS an attack on the internet and on freedom, and IS a miscarriage of justice that victimises ordinary people in productive jobs who have done absolutely nothing wrong. I hope and expect it will be reversed on appeal.

    • Adam, I'm drawing a distinction between (1) what the teenagers did (uploading the video) which of course no one at Google is responsible for and (2) the systems that Google has in place to deal with material like this - which of course Google executives ARE responsible for. Are you saying Google bears no responsibility for what their platform allows to be published after they are notified about it?

      Second, the postal service IS one-to-one - which you can use multiple times if you've got the money. It's possible to browse Google Video / YouTube, and for third parties to alert each other to the videos. You cannot browse the post, and nor can I alert you to a private letter that a third party has sent to someone else. They are different - there is no analogy.

      Third, "In liberal societies we believe freedom of speech gives us vital protection." Yes, I agree. But there are limits on freedom of speech - we wouldn't allow racist or libellous material to go live. If Google were notified of this sort of material and did nothing, or didn't have systems in place to be notified of it, they would be liable. This case is the same.

      I have in no way suggested that Google "ought to be obliged by law to destroy ... content immediately when first contacted in any way by any person who claims it offends them". I'm suggesting that if Google is notified of material in which a gang abuse a vulnerable child, they ought to do something about it. If they don't, then they should be held liable. Nor am I suggesting that there should be routine human intervention pre-publication. But UGC plaforms need to have robust systems for alerts around offensive material.

      Finally, suspended prison sentences mean something else in Italy as I understand it. Whatever. It is not an attack on freedom - it is an attack on an attitude that UGC platforms bear no responsibility for content that they are - or should be - alerted to.

  • Carl says:

    I'm just throwing this out there: you say that the bullies were later prosecuted - their stupidity for putting it up on google must be acknowledged, but didn't google make it possible for these numpty's to be caught and nailed to the authorities? Isn't this a bit like CCTV? If you're not doing anything wrong (or you're not doing anything wrong in front of a camera with a captive audience) then you'll be fine? Perhaps it's thanks to google (represented now by criminals, albeit hypothetical criminals not categorical criminals - see Kant, father of enlightenment, for definitions) that these guys who pushed the autistic chap around are doing time, and I'm sure most of you would like to see justice done, no?

  • Grishma @strangloops says:

    well they could use systems like youtube to monitor and get hold some of these bullies - isnt the government responsible to get these people first rather than waste precious money and resources on filing a lawsuit. they could clearly use the money to put better monitoring systems in place to minimize such incidents - just an idea :)

  • Great article. If you create a platform for free speech it gives you responsibilities. You don't deny people their right to free speech by denying them access to your platform.

  • Re: the first point - there is no conflict between what Google and the police said re: takedown. They said they took the video down as soon as the police notified them; that's entirely compatible with the video being on for several months and Google not heeding user's complaints, if the police notification came months after the video's upload.

    Which shows a bit of a fuzzy distinction throughout this entire post - Google's duty to their community of users and the subject of the video (which they clearly failed on) and their duty to obey the law - what's morally right and legally right. Google clearly failed in the former but that doesn't necessarily make them criminals.

    • Matthew Pemble says:


      I am not aware of any aspect of the EU Directive that requires complaints to be made by the police. Article 14(1)(b):

      the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

      A complaint by a normal user of the system should be sufficient to trigger the "we must now check if this is bad" response - which it didn't - it is not as if adding some additional functionality to, for example, the 'flag' system would have be hard (although as this was pre-Youtube, I have no real idea what the mechanisms were for Google Video). Yes, law enforcement will have a preferential access route - because they will often be dealing at the most serious end of the spectrum of offensive material, it doesn't mean that the ordinary user should be ignored. And there is clearly (in both the UK SI and in the EU directive, and I assume that the Italian lawyers know the relevant implementation in to Italian law) a legal obligation to do so.

  • Michela says:

    I think you were right on many points, but the problem is that speech freedom is currently really in danger in Italy, and the web is getting a big enemy of Berlusconi and his henchmen, who are, by the way, controlling most of the remaining media.

    On almost a daily basis they talk outraged of Facebook groups, Youtube videos, blogs etc..., while their tv channels and newspapers often use a very offensive language towards whoever tries to be against the goverment, and treat women as they were object, not even animals.

    So, even if I kind of agree with you, I don't trust this sentence to be really for the human rights. Strongly possible is quite the opposite.

  • meh says:

    you fine the company, you don't jail the execs. the whole point of incorporating in the first place is absolving liability.

    and it's not even a big deal, it's mere negligence in practices, it's not like they went over and beat the boy themselves.

    it's also BS to claim that it is any moral responsibility at all for whatever happens on a free platform. let's start jailing people who make highways because people get killed in car accidents on them...

  • Meh: I don't think the car analogy you give is right, as there is no negligence on the part of the highway manufacturers. What about Toyota execs who didn't handle the recall well with the cars that wouldn't brake - if they were shown to be negligent (I'm not saying they are), it would seem right to hold them responsible, no?

    Chris - I think the difficulty here is understanding what went on the Italian court room. It looks like they were found guilty of a breach of privacy because they hadn't acted on warnings. Does that deserve a jail sentence - I'm not sure. Was it right to hold someone at Google accountable for this - yes.

  • Tom W says:

    I wonder what proportion of YouTube videos have been flagged as 'inappropriate', by someone who just doesn't like what it says, or thinks it's not funny, or just to be perverse? Anyone who has ever looked at the comments posted to many of the popular videos knows that the YouTube user base is not exactly well-mannered. It seems to me that, from an operational standpoint, insisting that Google deal with user-flagged videos within days may well be tantamount to requiring them to pre-screen everything.

  • Tom Foremski says:

    I totally agree. Google is a media company and it should bear the same responsibilities as other media companies. It cannot claims "Internet freedom" without the corresponding need for responsibility. Press freedom carries the responsibility to be fair and accurate and socially responsible. Google needs to do the same.

    There's more here: Google Is A Media Company - New York Times Sees The Connection In Italian Court Case

  • Excellent article Malcolm! One of the few that isn't a basic reiteration of Google's official statement. I've also written a critique of the media's portrayal of this verdict as "an attack on freedom." My reasons are slightly different that yours though. It seems that Google simply failed to comply with its obligation under Italian law to follow certain procedures. Had they done so, it is unlikely that a guilty verdict would have been reached. I go into this in a bit more detail in my blog if you want to check it out.

  • [...] from this consensus view, however: editor and SEO consultant Malcom Coles argued that the ruling was entirely justified, and that Google should accept its responsibilities to monitor content that is uploaded through its [...]

  • jacky says:

    Great article. If you create a platform for free speech it gives you responsibilities. You don't deny people their right to free speech by denying them access to your platform.

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