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Google exec privacy convictions 'based on legal error'

Italian blunder likely to fall on appeal

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The Italian court which sentenced three Google executives to a suspended jail term made a legal error, according to an Italian legal expert who has studied the judgment (pdf, in Italian). Elvira Berlingieri told OUT-LAW that Google was likely to win any appeal.

Three Google executives were sentenced under Italy's privacy laws over the posting on Google Video of a clip showing a child with autism being bullied by other children.

The verdict was announced before the full judgment was published, leading some to fear that the case eroded the protections of the E-Commerce Directive in Italy. This EU law shields online service providers from liability for their users' actions but demands that they react when notified of law-breaking uses of their services.

But Berlingieri has now studied the full ruling and said that the sentence was the result not of a failure to consider the Directive but of a judicial error in interpreting Italy's own privacy laws.

"The judgment acknowledges that, following the E-commerce Directive’s safe harbor rules, Google has no obligation to control what users do on its services," she said. "Nor can it be held responsible for its users' behaviour. The verdict has, in fact, another source."

Berlingieri said that Italy's privacy law forbids a user from posting online another person's personal data without their consent, a requirement that is even more stringent when the person depicted is disabled, because the data becomes sensitive personal data under the privacy law.

"The students that uploaded the video were violating the privacy law," she said. "The judgment states that there was a failure in the notice that Google was giving. It states it was not prominent enough, but doesn't give guidelines for how notice should have been given."

She said that the Google executives were found in breach of Section 13 of the privacy law for not fulfilling "the due notice obligations under Section 13 of the Privacy Code".

These obligations include, according to the judgment, making explicitly clear to its users what their responsibilities are regarding privacy and privacy protection. "The court is saying that Google should tell its users not to upload other people’s data without gaining their prior consent," said Berlingieri.

In fact Section 13 of the Privacy Code focuses on the information that must be given to a "data subject" but it is silent on the duty of a company like Google to pass this obligation on to those who use its services.

Google did warn users in its privacy policy that they should obtain consent from those who feature in their videos, but the judgment says that the explanation was not prominent enough.

"The judgment states that, even if was true that the terms of service of Google Video said that people cannot upload content where other people are portrayed unless there is prior consent, this was not enough," said Berlingieri. "It was too hidden and not clear."

"The judgment recognises that people don't read all the terms and conditions, and the judgment said the explanation in Google's terms was only written there as an alibi for a legal problem, not as something that is effective," she said.

According to Berlingieri, the convictions are based on Google's failure to notify users that they should not upload another person's personal data without consent, and that they processed personal data "in order to profit" from the display of adverts alongside the video content.

“It's true that people do not read all the terms and conditions," said Berlingieri. "The problem with the judgment is that we still have no rule of law that takes into consideration the difference between saying 'yes, I accept' by pushing a button to sign up to an internet service and understanding what you’re really accepting. This is where the judgment probably went too far."

The trouble with the ruling, said Berlingieri, is that Section 13 of the law was not mentioned in the case against the Google trio at all. One charge laid against them by prosecutors was to do with defamation, and that failed. The other was to do with privacy but that was based on a supposed data-processing violation of Section 167 of the law.

Section 167 of the Act says that anyone who breaches particular Sections of the Act with a view to gain or with intent to cause harm shall be punished by imprisonment of between six and 24 months. The Sections to which it refers, though, do not include Section 13.

"If you put together Section 13 and Section 167, that is how you get a sentence of six months," she said. "The problem is that section 167 does not talk about section 13. In the charge written by the prosecutors, Article 13 is never mentioned."

Google said when the sentence was announced in February that it would appeal. Berlingieri said that it was likely to be successful.

"Google will appeal and I believe they will win," she said.

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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