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”.

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.”

 

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