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”.
The case Vividown vs. Google, considered the best known Italian Internet law case, was concluded on Wednesday December 11th 2013 with the announcement that the Supreme Court had acquitted the three Google executives.
Upholding the judgment on appeal, the Third Criminal Chamber of the Supreme Court acquitted David Drummond, George De Los Reyes and Peter Fleischer, Google’s three executives, who were sentenced by a first instance judgment in 2010 to six months in prison.
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 by classmates. The footage was uploaded on the Google video platform by a girl student, then a minor, and almost instantly became one of the most “clicked on” videos, moving right up the viewing list of the most popular videos on the platform.
The verdict of guilty passed by the Court of Milan had considerable international repercussions and was taken up by the world press. Judge Oscar Magi who drafted the judgment, had essentially convicted the executives not of libel, which was the request of the prosecution, but of 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 which was all the more serious as it relates to an activity carried out for motives of profit. In the Court’s opinion, the girl who had uploaded the video had not been given adequate warning of having to pay full regard to questions of privacy.
The Court of Milan’s decision raised a chorus of international protest because of its attribution of liability to the content provider. Most of the criticism predictably came from both Google’s official blog and Peter Fleischer’s personal blog, the result of which was an almost immediate forceful media reaction against the Italian judgment. The protests made reference to the neutrality of providers guaranteed by art. 17 of Legislative Decree no. 70/2003 implementing Directive 31/2000, which excludes the obligation for monitoring and only assigns liability subsequent to the committing of the offense under certain conditions.
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 there was no case to answer. The Court attributed liability for processing the data 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). For an in depth analysis of the Court’s reasoning, please refer to Giusella Finocchiaro’s comment.
However, the question was not resolved in the Court of Appeal and in 2013 the Milan prosecutors lodged an appeal with the Supreme Court, arguing that platforms like YouTube should be obliged to carry out prior checks on videos uploaded by users and to obtain clearance from the people filmed in these videos.
From what we learn from media reports, in his submissions the Deputy Public Prosecutor Mario Fraticelli sought annulment with postponement of acquittal and called for a second appeals process, referring to the fact that “the judgment of the Appeal Court states that the three defendants had examined the video and had had the opportunity to inspect its contents” and that “you cannot think that anyone who provides a service on a platform should then not attend to and be responsible for what is uploaded.” The Supreme Court, however, did not accept this request.
The reasoning for the Supreme Court’s verdict will be announced in a month’s time.
Google says it is satisfied with the outcome of the court case: “We are happy that the Supreme Court has confirmed our colleagues are innocent. Our thoughts are again for the boy and his family. Today’s decision is also important because it confirms an important legal principle.”
News items stored in newspapers’ historical online archives are to be considered incomplete in that they do not report additional developments of the facts, and therefore must be updated. Thus, with this motivation, the Italian Supreme Court imposes the obligation for publishers to update their online news archives.
In judgment no. 5525 of the Third Civil Division, the Italian Supreme Court has ruled that online newspapers will in future be under the obligation to equip their archives with “an appropriate system designed to provide information (in the body of the text or in the margin) on whether there exists a follow-up or any development to news items and if so what the content is[...] allowing users swift and easy access to the updated information”.
The case before the Court concerns the news about the criminal involvement of a politician from Lombardy in the north of Italy. The man had been arrested in 1993 on charges of corruption, but was subsequently acquitted. The news of his arrest, however, still appears among search engine results because of one article in the online news archive of the Italian newspaper “Corriere della Sera”.
The man had appealed firstly to the Italian Data Protection Commissioner and subsequently to the Court of Milan requesting the removal of the judicial data relating to him and complaining of the lack of any update to the archived news item reporting on the favorable outcome to the issue. As an alternative he asked for an update linked to the news item or the transfer of the item itself to a part of the site not indexed by search engines. However, neither the Commissioner nor the Court accepted his requests.
The Italian Supreme Court, however, has accepted the claimant’s grounds.
While establishing that in any case there were no grounds for libel as the events described in the article were true at the time of its publication, the Court acknowledged the incompleteness of the information in the light of the subsequent events.
In an attempt to balance the requirements of public interest, guaranteed by the freedom of the press, with the interests of the individual, protected by the right to privacy and the right to oblivion, the Court thus ruled that the archived articles must be accompanied by their relative updates.
In this way the decision aims to safeguard not only the right of the person involved in the events to protect their own personal and moral identity, but also the right of users to receive accurate and complete information. The judgment of the Supreme Court, therefore, attaches a new value to the right to oblivion (the right to be forgotten) within the very principles of the freedom of the press itself.
The Italian Supreme Court did not, however, attribute any responsibility to search engines, which in the judgment were defined as “mere intermediaries.”
Although it is forbidden by law to check the email boxes of employees, in certain cases the employer is entitled to carry out checks on emails, such as for example in the case of the emergence of evidence “strong enough to suggest the opening of a retroactive investigation.”
This was determined in judgment no. 2722/2012 of the Italian Supreme Court which rejected an appeal by a former executive of the Bipop-Carire bank, confirming the ruling of both the Courts of First and Second Instance.
The bank employee was dismissed with just cause in 2004 for divulging confidential information via email to parties outside the company in order to facilitate “financial transactions that had brought him personal gain.”
The Court of Appeal upheld the First Instance ruling and found a number of violations committed by the former bank employee such as breach of confidentiality and fairness, a violation of company rules and a violation of the code of professional ethics.
The employee thus filed an appeal to the Supreme Court claiming a violation on the part of the employer of the guarantees concerning the limits of distance controls of employees provided for by art.4 of the Workers’ Statute.
However, the Italian Supreme Court found that the exercise of control by the bank “is not to be considered as mere surveillance of the employee’s work,” in that it “was aimed at ascertaining whether possible unlawful conduct had been committed, (which in fact subsequently proved to be the case)”. This ex post control is to be considered as permissible as it follows the discovery of facts that demand a retroactive investigation aimed at “ascertaining the existence of conduct that jeopardized the image of the company itself with third parties”
A recent judgment by the Italian Supreme Court has stated the obligation to blur out the faces of beggars in photos accompanying articles related to social problems.
For this reason, the case of a Rumanian woman who brought a case of libel against a Trento newspaper for publishing a picture of her with the caption “a beggar at work in the historic centre of Trento” has been referred for re-examination. The photo accompanied an article with the title ” Trento citizens and the security package” which reported on the opinions of a number of Trento citizens concerning the usefulness of setting up vigilante patrols to prevent and discourage phenomena such as prostitution, vandalism and begging.
The judgment of the Court of Bolzano had stated that no case of libel could be attached to the simple combination of text to a neutral photograph, which merely served to draw attention to the topic of the article.
Nevertheless, the Supreme Court considered that such reasoning was not entirely devoid of logical flaws. In fact, since collective consciousness places beggars on one of the lowest rungs of the social scale, it is natural that those who are forced by the hardships of life to beg, would feel mortified and humiliated in being branded as beggars.
The Court also found that in the offending article mention was made of a relationship between the phenomenon of begging in the Trento city centre and a criminal organization based outside the province of Trento itself. The journalist’s condemnation of the phenomenon was therefore clear and for this reason, the photograph could not be considered neutral since, according to the Court, the reader was led to identify the person in the photo with one of the problems to be stamped out in order to ensure life in the city is conducted in a peaceful fashion.
The Supreme Court judges also wished to mention that when for reasons of satisfying the requirements of news reporting it is necessary to show photographs of people involved in activities attracting seriously negative public opinion, blurring out the image is common and correct practice in order that creating a connection between the activity itself and any specific person should be avoided.
The case was therefore referred back to the Court of Bolzano for re-examination.
The editors of online newspapers are not responsible for defamatory comments posted by their readers.
This is what has recently been established by the Italian Supreme Court when asked to rule on the legality of the conviction by the Court of Appeal of Bologna against Daniela Hamaui, the former editor of the web version of the Italian magazine L’Espresso.
The inferior Court judges had pronounced a verdict of guilty on the basis of the requirements of Art. 57 of the Italian Criminal Code regarding offences committed in the periodical press, which punishes an editor or deputy editor who “fails to exercise the necessary control to prevent crimes being committed by the publication of contents in the magazine he edits.”
However, as they were aware of the particular nature of online editions, the Bologna Appeal Court judges had not charged the editor of Espresso with non compliance of content control, but with the failure to remove the defamatory comment.
Thus, Daniela Hamaui’s defending counsel argued before the Supreme Court that the inferior Court ruling had misinterpreted the norm, which in fact punishes the failure to prevent publication but not the failure to implement post-publication controls.
In ruling no. 44126 of the Fifth Criminal Division, the Supreme Court upheld the defendant’s appeal observing the structural difference between the printed and electronic press and underlining that it was impossible for the magazine’s editor to prevent the publication of defamatory comments, which makes it evident that “the norm contained in art. 57, of the Criminal code was not designed for these situations which would force a newspaper editor to work in impossible conditions and would punish him automatically and objectively giving him no opportunity to conduct himself lawfully.”
The recent publication of the ruling of the Italian Supreme Court (17 February-1 June 2011, No 21839) offers much food for thoughts.
The facts behind the decision seem, in their essence, very simple: one person published on the Internet the mobile phone number of another person without his consent.
Such conduct, according to the decision, falls within the crime of unlawful processing of personal data, governed by art. 167 of the Italian Code for the protection of personal data.
That the elements that constitute this kind of crime are three:
1) the process should be in violation of some specific provisions of the Code
2) there should be a specific intent, such as the will to cause harm or make a profit
3) the damage (harm) should have actually been caused.
Now, from what is stated in the decision, the data process was definitely illegal. The personal information (the phone number) had been processed, more precisely, via Internet, without consent.
This conduct, as it follows, was put in place by the offender in order to cause harm to the person and the damage was actually produced. On this point, it should be noted that the Supreme Court seems to favor the recognition of harm in re ipsa, but we’re not deepening this aspect here.
For such reasons the Supreme Court confirmed the sentence of criminal conviction.
However, while the decision seems to be correct, within the limits of the meager facts reported in the published ruling, there was an error.
Contrary to what the Court stated, the number of mobile phone is certainly not a sensitive personal data.
The two definitions of Art. 4 of the Italian Code for the protection of personal data are very clear and do not give rise to misunderstandings.
The personal data is, in short, an information attributable to an individual: thus the number of users fixed telephone, mobile telephone and the number of users.
However, “sensitive” data are only expressly and exhaustively listed in Article. 4, paragraph 1, lett. d), namely “personal data revealing racial or ethnic, religious, philosophical or other beliefs, political opinions, membership of political parties, unions, associations or organizations of a religious, philosophical, political or trade union, as well as personal data disclosing health and sex life.” Among these there is not the number of mobile phone users.
“Sensitive data” is not, in legal terms, synonymous with “confidential data”. The confidential data does not exist in the Italian law, while sensitive data is only what is listed above.
The number of mobile phone is a personal data but not sensitive one. This is a mistake that is frequently committed by non-experts.
However, this does not mean that the number of mobile phone can be treated and distributed freely by anyone: it is a personal and then for its treatment it is necessary to obtain the consent of the person involved.
If it had been sensitive data, then it would also need the authorization of the Italian Authority for the protection of personal data and the offense would be aggravated.
This error of the Supreme Court shows that the so-called privacy law is still far from being known and that the level of awareness and legal culture regarding this subject is still very low.