Italian judge dismisses initial Google defense argument

Bullying video case is considered along with another privacy complaint

The judge in the Google bullying video case Tuesday rejected a defense argument that lawyers acting for the principal plaintiff did not have a valid mandate. Milan judge Oscar Magi took almost two hours to consider the argument put forward by Google lawyers Giuseppe Vaciago and Giuliano Pisapia before ruling that a lawyer representing the Vivi Down association had been legitimately appointed.

Vivi Down first drew attention to the existence of a three-minute mobile-phone video showing four youths harassing a classmate with Down syndrome that was posted on Google Video in 2006. Four Google executives -- chief legal officer David Drummond, former chief financial officer George Reyes, global privacy counsel Peter Fleischer and former head of Google Video Europe Arvind Desikan -- are charged with defamation and violating Italy's privacy law.

Vivi Down continues to act as a plaintiff in the case, though the teenage bullying victim, who lives in Turin, withdrew last month. The Google lawyers had argued that Vivi Down's complaint was not valid because it had been presented by the association's president, without the explicit consent of its board of directors. The judge threw out the argument, saying the president's powers had been correctly exercised.

"The judge ruled on the validity of the mandate at the basis of Vivi Down's complaint. At the next hearing, on March 25, he will tackle the issue of whether or not the court has jurisdiction," Raffaele Zallone, a lawyer representing another plaintiff in the case, said in a telephone interview.

Zallone represents a woman who complains that Google searches for her name turn up reports of her involvement in a corruption case but fail to register the fact that she was ultimately acquitted. Judge Magi is considering both the corruption-report complaint and bullying video case in the same trial. In the complaint about the corruption report, Google is accused of providing false information to Italy's Communications Authority because one of the Google defendants allegedly appointed a lawyer to represent him before the Authority without having the power to do so, Zallone said.

In its ruling on the dispute, the Authority accepted that Google was not responsible for the content appearing on its search engine but ruled that the creation of cache copies was equivalent to data handling and had to be done in accordance with Italian law. "The Authority established an important principle," Zallone said. "If you create an autonomous copy you become responsible for the content of that page from the point of view of data handling under the privacy law."

Zallone acknowledged there was no easy solution for his client, and for other people in her situation, since newspapers inevitably gave greater space to reports of accusations than they did to acquittals. A possible solution would be to allow newspapers to retain full coverage of criminal cases in their online archives provided they make the early, accusatory reports inaccessible to external search engines, he said.

The Communications Authority has recently ruled on two cases similar to his client's and is now ordering newspapers to remove the defamatory reports from their online archives, Zallone said. "It's not easy to find the right balance on this issue," Zallone admitted. On Tuesday a Google search revealed that the online archives of the Corriere della Sera and Repubblica newspapers both carried two reports of Zallone's client's past judicial woes.

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