Posted by: Clarinette | April 13, 2010

Google acting as ‘active host’ liable in Italy

A new comment – in Italian – on the decision on Google case and the video of  children abusing a disabled classmate: ‘Una Sentenza piccola piccola…’ The 111 pages judgement seems to have held Google liable because of its economic interest and lack of warning to prevent the upload of such a video. Should Google be liable for the lack of clear warning to require concent of the data subject prior the publication of the video? At the same time, Guido Scorza questions the absence of liability even if the Terms and Conditions of service were clear. The court seems not to have made reference to the E-commerce directive Google Australia was considered to be subject to the Italian Data Privacy Law as collecting and processing data from users of the website from Italy. Google was considered to be an ‘active host’ and therefore liable for defamation and invasion of privacy. The commentator seems to attribute this judgement to ideological considerations more than to an exercise in legal logic, An uncertainty remains on the application of the regulation for users of such services.

Commented by Guido Scorza:

See Ryan Calo:

UPDATE: The NYT titles: ‘Italian Judge Cites Profit as Justifying a Google Conviction’

Google reaction to the Judge Magi’s reasoning. “As we said when the verdict was announced, this conviction attacks the very principles of freedom on which the Internet is built,” the company said in a statement. “If these principles are swept aside, then the Web as we know it will cease to exist, and many of the economic, social, political and technological benefits it brings could disappear.”

The NYT reports from one of the prosecutors, Alfredo Robledo: ‘He cited a passage in Judge Magi’s ruling that said: “In simple words, it is not the writing on the wall that constitutes a crime for the owner of the wall, but its commercial exploitation can.”’

It won’t be a surprise that Google will appeal the decision.

In my opinion, Italian Judges are confusing the statut and liabilities of Data Processor and Data Controler.


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