George Nathanael is a JD candidate at Osgoode Hall Law School.
Last week an Italian court found three Google executives liable for privacy violations in relation to a video posted on Google Video in 2006. The video showed an autistic boy being bullied by classmates, and it was posted by the classmates themselves. Google actually removed the video after being notified of it, but that was not enough for the judge to decide against convicting its Chief Legal Officer, Global Privacy Counsel, and one of its former Italy board members. As expected, the decision was quite shocking to many, and was even argued by one of the convicted as opening the door to unlimited liability.
It seems that the actual employees convicted were far removed from the uploading of the specific video, but that should not automatically mean that Google should be off the hook. Setting aside the issue of at what point freedom of expression is trumped by other considerations (e.g. privacy, hate speech, etc.), it can still be asked how much liability a facilitator of a criminal act can hold. Should Google have the obligation of checking every single media file uploaded to one of their sites before it is made available for viewing by the public? For business purposes, this would most likely not be feasible any time soon, but should a party’s economic constraints really be a major mitigating factor as far as its responsibility is concerned? If a service is not economically feasible unless performed in a manner that can substantially open the door to criminal activity (however that activity is defined), perhaps the service simply should not be taken on; if it is taken on then the potential negative consequences of the risk should remain attached to the business endeavour. At the same time, any expansion of liability would likely have a chilling effect on a lot technology companies. Nonetheless, lines must exist, and sometimes it is up to the courts to draw them.
Though I personally believe that this decision was a bit extreme, it begs the question: if a party is going to set up an online business that can potentially facilitate illegal activity, how proximate does the party have to be to the activity if it did not directly cause it? This general line of inquiry is applicable to a variety of other situations as well, such as the facilitation of copyright infringement by parties whose product may also be used for legitimate reasons. Another major case along these lines, which will likely be a greater authority for courts in other jurisdictions, was the Australian decision of AFACT v. iiNet, discussed here. Defining liability in the online realm is typically much more complicated than for situations that happen in the physical world, and the process will likely be continually changing as well.
The Italian ruling will be appealed, and no doubt if the appeal is unsuccessful then it is very likely that the precedent will open the floodgates of liability to many other hosting platforms within that jurisdiction. As it grows and brings about numerous positives, the internet continues to push legal boundaries as well. This case is but one example of the clashing of interests that courts and lawmakers must be considerate of as they make decisions with respect to such a constantly evolving medium, and imprudent outcomes like this should be avoided.