Silvio Berlusconi’s schemes to gag dissenting voices seem to have been revealed in a series of intercepted phone calls. But it may be too late to redress the balance, says Giulio D’Eramo
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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.
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.
Index on Censorship took a firm line on the conviction of three Google executives in Italy for violation of privacy yesterday, expressing its alarm and “horror” at the verdict and denouncing the court’s “flagrant disregard for free expression”.
The case had been brought by a disability charity, which claimed that Google was culpable for not gaining the consent of all parties in a video before it was uploaded to Google Video. The video showed a young disabled child being harassed and bullied. The charity also claimed that Google had been slow to react when asked to remove the clip.
As a journalist, I’m hardwired to defend freedom of expression — but this case is far more nuanced and complex than it first appears.
Here’s why. I was the first British journalist to investigate, and then break the story of the scope of disability hate crime in the UK. I wrote a major investigative report, Getting Away with Murder, on disability hate crime for the charity Scope, the UK Disabled People’s Council and the magazine Disability Now in 2008.
When we were drawing up recommendations we talked to law-makers about whether the law on incitement — particularly relating on inciting hatred using the internet — should be broadened to include crimes against disabled people. At that time I was unable to find evidence that the internet was being used routinely to mock, taunt, bully or harass disabled children and adults — and to incite others to similar acts. So I didn’t push for broadening of legislation to cover it. That was right at that time.
That’s changed. Google, YouTube (also owned by Google), Facebook and other sites have, just in the last two years, become major broadcasters and publishers — with unfiltered content being uploaded by the public every day. But these broadcasters and publishers are almost completely unregulated — unlike terrestrial broadcasters, print outlets and publishers.
The public has realised that those sites can be used to create virtual reality freakshows — and disabled people are being used to star in them, against their will. For example, Christine Lakinski, a disabled woman, collapsed on her doorstep in Hartlepool in 2007. A crowd gathered. Anthony Anderson urinated on her. His friends covered her with shaving foam. Then, clearing space on one mobile phone, a man filmed the incident, yelling: “This is YouTube material!”. He was arrested before the film could be uploaded.
In another incident, this time in Melbourne, Australia, around the same time, a group of high school students assaulted a disabled girl, urinated on her, set her hair on fire, sexually assaulted her and then posted their exploits on You Tube.
These incidents are becoming increasingly common — the internet has become the modern version of the medieval “freakshow”, in which the “village idiot” was not only expected to labour in the parish fields for the day, but also “perform” for the amusement of the community. Later, people would visit Bedlam and other asylums for their amusement.
Disabled teenagers, who create Facebook pages to find friends because they are so often socially isolated, find that their pages are then used to bully them.
We need to walk a line between protecting the human rights of disabled people not to be mocked, taunted or targeted (as indeed we do minority ethnic groups and children, for instance, on the net), and freedom of expression. I don’t think anyone believes that paedophiles have the right to enjoy the freedom of expression to post images of children being abused on the net. So what about the rights of disabled people?
Just a month ago on Channel 4’s Big Brother’s Big Mouth, ex-footballer and actor Vinnie Jones mocked presenter Davina McCall, saying that she walked like a “retard”. Channel 4 was initially unrepentant, claiming that participants had the right to freedom of expression “without censure”. Later, after numerous complaints by disabled people and charities, the broadcaster apologised, and cut the offending item from its recorded programme. The complaints have now gone to Ofcom.
But there is no Ofcom in cyberspace — yet — so virtual broadcasters and publishers must act responsibly and quickly. And we, as journalists and policy-makers need to discuss how to balance the human rights of disabled people to be protected from incitement to violence against the right to freedom of expression. Let’s start talking.
This is genuinely alarming.
An Italian court has convicted Google executives David Carl Drummond, George De Los Reyes and Peter Fleischer (now retired), for violation of privacy, after a video of an Autistic child being bullied was uploaded to Google Video.
The case was brought by charity Viva Down, who claimed that Google (which owns YouTube) was culpable for not gaining the consent of all parties in the video before it was uploaded. The charity also claimed that Google had been too slow to react when asked to remove the video.
Can Google really be responsible for every piece of content on Googe Video or YouTube? Doesn’t this seriously confuse how the web works?
This from the Google blog:
But we are deeply troubled by this conviction for another equally important reason. It attacks the very principles of freedom on which the Internet is built. Common sense dictates that only the person who films and uploads a video to a hosting platform could take the steps necessary to protect the privacy and obtain the consent of the people they are filming. European Union law was drafted specifically to give hosting providers a safe harbor from liability so long as they remove illegal content once they are notified of its existence. The belief, rightly in our opinion, was that a notice and take down regime of this kind would help creativity flourish and support free speech while protecting personal privacy. If that principle is swept aside and sites like Blogger, YouTube and indeed every social network and any community bulletin board, are held responsible for vetting every single piece of content that is uploaded to them — every piece of text, every photo, every file, every video — 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.