Editorial Director: Giusella Finocchiaro
Web Content Manager: Giulia Giapponesi

The Italian Supreme Court’s reasoning for its verdict in the well known case Vividown vs. Google has been announced: namely that the Provider is not liable for the violation of the privacy of individuals in videos uploaded by users.

The Third Criminal Chamber of the Supreme Court published the reasoning for its verdict of acquittal for the three Google executives who were sentenced to six months in prison by a first instance judgment in 2010, following the upload on the Google video platform of a video in which a disabled minor was humiliated by classmates.

According to the Supreme Court, Internet host providers cannot be held criminally liable in cases of violation of privacy due to videos posted on the web.

Press sources have reported certain extracts of the explanation for the sentence: “The offences before us here, relating to Article 167 of the Privacy Code, shall be construed as offences committed under colour of authority, as here we are dealing with conduct only resulting in a breach of the obligations of the owner of the data processed and not of any other person who in any way handles the data being processed, but without related decision-making powers”.

The Supreme Court has specified that the hosting service provider “has no control over the data stored nor does it contribute in any way to the selection of the same, its research or the creation of the file that contains it, such data being entirely attributable to the users of the service who upload them onto the platform placed at their disposal”.

The facts giving rise to the legal proceedings date back to 2006 when the association Vividown (the Italian Association for scientific research and protection of Down’s Syndrome patients, based in Milan) had sued Google for allowing the showing of a video in which a disabled boy was humiliated at school. In 2010, Judge Oscar Magi sentenced three Google executives to six months in prison for invasion of privacy.

According to the court, the California-based company was liable due to the vague nature of the information concerning privacy that Google Video provided for users who uploaded videos. A vagueness that was all the more serious as it relates to an activity carried out for motives of profit.

In December 2012, the Court of Appeal of the Milan court overturned Judge Magi’s decision and fully acquitted the three executives because in their opinion the liability for processing the data was to be attributed to the uploader of the video and not to the content provider. Therefore, this violation does not involve Google, but rather those responsible for the online publication of the video (in this case the student who uploaded the video). For an in depth analysis of the Court’s reasoning, please refer to Prof Giusella Finocchiaro’s comments.

The judgment of the Supreme Court of 18th December 2013 confirmed the verdict of the Court of Appeal. In its explanation released today, the Supreme Court has in fact found that Google Video operated as a “mere Internet host provider, a role that confines itself to providing a platform on which users can freely upload their own videos”, the “content of which is their own exclusive responsibility”. Therefore, the three Google executives accused in the proceedings “are not owners of any data processed”, whereas “the sole owners of the sensitive data processed and contained in the videos uploaded onto the site are the users themselves who uploaded them and they are the only ones who both the administrative and penal sanctions envisaged for the owner of processed data by the Privacy Code can be applied to”.



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