When 1st Amendment and Privacy Rights Collide

A New York Times article from late last week described the criminal conviction (in absentia) by an Italian court of three current/former Google executives.  The charges stemmed from Google Video's 2006 online display of students in Turin bullying an autistic classmate.  While the clips were removed after complaints were lodged, the three executives were nonetheless convicted under an Italian privacy law and received six-month suspended sentences.  The defendants were simultaneously cleared of charges of defamation.

Google decried the decision and promised an appeal.  A European free speech advocate drew the analogy to a postman being jailed for delivering contraband.  Separately, American online providers have consistently maintained that internet companies serve merely as "bulletin boards" and are thus not responsible for the immediate removal of defamatory or otherwise offensive content.

While the case most immediately raises the applicability of EU law to online video-share services, the issue of censorship of offensive material seems more interesting.  Domestic online providers have traditionally maintained that such censorship is precluded by the sheer volume of material posted (and Congress has reinforced the view by legislating protection for electronic intermediaries). 

But businesses have begun crying foul over defamatory statements posted anonymously, and the press has occasionally highlighted online videos displaying violence.  As the decision by the Italian court demonstrates, the naked assertion of free speech rights - at least in the global forum - may not be enough to shield a company for failing to act quickly enough to censor content.  If internet providers do merely serve as the postman, then the day may be coming when they simply have to shelve some packages for review.

---JSC, 3/1/10