The Italian court’s decision in the Google/Vividown case is as incomprehensible as it is disturbing. Unfortunately, as the full ruling will not be made available for some time, we can only guess at the specifics of the court’s decision.

The three Google executives, rather than the company itself, were held criminally responsible for breaches of Italy’s data protection laws. The convictions could have been based on Google’s role as the provider of a “hosting” service for videos or, secondly, with regard to the privacy of the individuals in the video.

Providers of hosting services may not, following an EU Directive of 2000, be held liable if they expeditiously remove material upon receipt of a notice that material is illegal. While there is some debate about when the item was actually taken offline, prosecutors argued Google “should have” known about the video and that the internet giant should never have allowed the video to be uploaded. It seems both legally and logically implausible to argue that internet service providers of any type should live in a legal limbo, carrying out surveillance of their users based on a court’s belief they “should have known”.

On the second issue, the privacy of the boy victimised in the video, it seems difficult to see how credible the prosecutions evidence could have been as the Italian data protection authority did not support this case. In either scenario it seems very unlikely that the court decision was legally sound but the decision is part of a wider and profoundly dangerous trend in Italy with regard to freedom of communication, privacy and expression.

• Italy already has internet filtering laws that are almost certainly in contravention of the European Convention on Human Rights.
• In January 2010, the Italian government proposed measures for prior checks of all content to be placed on video hosting site, blogs and news media.
• Media freedom in Italy continues to decline according to Freedom House, who registered a further deterioration in the country in its most recent report.

In such a context, the “chilling effect” of this judgement could be far-reaching. In an environment where the providers of online services have little or no legal certainty, the only realistic option would appear to be to err on the side of caution and censorship and many journalists and commentators seem to be taking the line of least resistance.

But in concert with the Italian government’s pre-existing plans to monitor all internet uploads this case could threaten user-generated content.

When legislation was proposed to outlaw anonymity online in order “to fight paedophiles” it was quickly revealed that document was secretly authored by Univideo, the Italian union for the movie industry. So was the Union’s concern really child abuse or was it copyright?

Unfortunately, the situation in Italy appears to be a sign of the future rather than an isolated case. The European Commission is in discussions with industry “stakeholders” about how to police the internet more efficiently for intellectual property infringements. The United States for the Anti-Counterfeiting Trade Agreement (ACTA) proposes that internet providers put “measures” in place to prevent infringements in order to avoid secondary liability for transgressions of their clients and the European Commission is also soon due to publish proposals for internet blocking. But don’t worry, its just to protect children; nothing sinister!

Joe McNamee works as Advocacy Coordinatory for European Digital Rights in Brussels (EDRi). He works on issues related to privacy, cybercrime, intellectual property, freedom of information/communication and related topics.