Milan judge: The Internet is not a lawless prairie

Judge Oscar Magi explained his reasoning behind convicting Google executives of violating Italy's privacy law

A Milan judge Monday explained the reasoning behind his decision to convict three Google executives of violating Italy's privacy law by allowing the posting of a controversial bullying video, saying the Internet is not a lawless prairie and the executives are criminally responsible because their company benefitted financially from the offense.

With images of the Wild West evidently in mind, Judge Oscar Magi wrote in a 111-page explanation of his decision to convict the Google executives: "There is no such thing as the limitless prairie of Internet where everything is permitted and nothing can be prohibited, on pain of a global excommunication by the people of the Web."

Judge Magi was outlining the reasoning behind his Feb. 24 decision to impose six-month suspended sentences on the executives for allowing the posting on Google Video of a mobile-phone video showing the harassment of a handicapped youth by his Turin classmates in September 2006. The company took two months to remove the video, which was posted in Google Italy's "Most Fun Videos" section and received 5,500 hits before being removed.

"Quite the opposite, there are laws that codify behavior and create obligations which, when they are not respected, lead to a recognition of penal responsibility," Magi wrote.

The convictions of Google Chief Legal Officer David Drummond, Global Privacy Counselor Peter Fleischer and former Chief Financial Officer George Reyes caused widespread controversy and were condemned by many observers as a threat to the freedom of expression on the Internet. The three were all acquitted on a second charge of defamation, as was their colleague, former head of Google Video Europe Arvind Desikan, who was not charged with the privacy violation.

Judge Magi stressed that the executives bore responsibility for the failure of oversight because at least part of the data-handling took place outside of Italy, "in particular in the United States, the place where the servers belonging to Google Inc. are undoubtedly located."

His Milan court had jurisdiction, however, Magi argued, because "Google Italy handled the content that was uploaded to the Google Video platform and therefore bore responsibility for it at least in so far as the [Italian] privacy law is concerned."

The judge criticized the information made available by Google on its own privacy rules as "totally inadequate or in any case so buried in the general conditions of the contract as to appear completely ineffective as far as the requirements of the law are concerned."

The guilty verdict was the result not of a failure to conduct a preventive monitoring of the material uploaded to its Google Video platform, but of "insufficient (and culpable) information about the requirements of the law," Magi explained.

Magi said there was no doubt Google's violation of the privacy law was motivated by the prospect of financial gain. "The service was deliberately launched without monitoring and only later -- given its enormous success -- was the possibility introduced for users to report inappropriate content for the purpose of its removal," Magi observed. "The possibility was, in reality, only apparent (given that technical and personnel investments were ridiculously inadequate for the purpose)."

The judge continued: "In simple words: it's not the writing on the wall that constitutes a crime for the owner of the wall, but its commercial exploitation, in certain cases and circumstances, can constitute a crime."

He said he did not believe his verdict radically altered the way the Internet would be regulated in the future and the worldwide clamor it had evoked was, to borrow from William Shakespeare, "much ado about nothing."

"In any case, this judge, like everyone else, awaits the arrival of a 'good law' on this subject," Magi wrote.

A Google spokeswoman said the company was studying the text of the judge's document but confirmed that the three executives would be appealing against what the company perceives as an assault on the founding principles of the Internet.

"If these principles are not respected, the Web as we know it will cease to exist and many of the economic, social, political and technological benefits that it brings will disappear with it," Google said in a prepared statement.

Italian lawmaker Maurizio Gasparri acknowledged that a gap exists in Italy's Internet legislation, but criticized Google for failing to take decisive steps to make its operations more secure. "In the meanwhile we would have expected a greater sense of responsibility from a well-known company like Google and some kind of initiative to demonstrate the good faith of its top management," Gasparri said in a statement.

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