On December 21, 2012, the third Milan appeals court acquitted three U.S.-based Google executives who had previously been convicted for breaches of Italian data protection law after Google failed to remove an abusive video from its Google Video site. The video, which showed schoolboys bullying a child with Down syndrome, remained on the Google Video site for almost two months in spite of complaints from users. Google only removed the video in response to a police investigation, after the organization Vivi Down, which advocates for people with Down syndrome, filed a report with the Italian police. Vivi Down subsequently took Google to court, which resulted in six-month suspended prison sentences for Google’s Chief Privacy Counsel Peter Fleischer, Chief Legal Officer David Drummond and Chief Financial Officer George Reyes (now retired).
As reported in our earlier client alert on this subject, the convictions followed Milan Judge Oscar Magi’s February 2010 ruling that, although Google had no obligation to monitor user-generated content uploaded to its video site, Google controlled the data on the site and thus had obligations as a data controller under applicable data protection laws. In the first ruling in Europe to find a web operator liable for user-generated content, Judge Magi held that Google violated such laws when it failed to provide users with sufficient notice about how their personal data would be collected and processed or to obtain their consent (including for processing sensitive data revealing the child’s health condition). Further, the court determined that the Internet giant’s failure to remove the abusive video, even after receiving complaints from users, was motivated by profit because advertising revenues were generated each time the video was viewed.
Prior to the appeals hearing, Milan public prosecutor Laura Bertole Viale called for the jail sentences to be upheld, observing that “not only has the privacy of minors been violated but lessons of cruelty have been given to 5,500 visitors.” The panel of judges at the appeals court, however, overturned the Magi ruling based on Google’s argument that it had not breached any privacy or other laws. Google said that it did not offer an editorial function, and that it could not be held responsible for the content as it was not possible for Google to continuously monitor the Google Video site. Google noted that it had swiftly removed the video in response to the police investigation, and had fully cooperated with the police investigation. Further, none of the targeted Google executives was directly involved in the posting of the video. Indeed, many observers had expected that the Google executives’ appeal would be successful, given that the practices seemingly required by Judge Magi’s ruling are not followed by most web operators. None of the Google executives, all based outside Italy, has served any jail time because each sentence had been suspended pending appeal. The full court judgment will be published soon.