Google will appeal the ruling, and it seems doubtful that the conviction will establish any meaningful precedent in other countries. But unless and until it is reversed (which could be a long time in the Italian judicial system, the verdict will create uncertainty and some trepidation. Certainly, the three convicted Google executives, including the general counsel, will avoid setting foot on Italian soil for fear of arrest.
Cited as the main basis for conviction was that Google had sought to profit financially from the posting on YouTube, a site that Google owns and is trying to find ways to earn money from. But it seems to be a bizarre leap in legal reasoning to attack Google for material uploaded onto YouTube by an unnamed private person. This posting was not accompanied by an advertising to produce revenue for Google. The verdict ignores what seems to be the obvious point that Google, like the telephone company and the post office, has limited ability to pre-screen the millions of submissions to a site such as YouTube (which today has about 150 million videos on line).
Google quickly removed the video after being notified about it by an Italian association representing people with Down syndrome. The film was viewed some 5,500 times over a two month period in the fall of 2006.
The internet, wrote Judge Magi, is not an “unlimited prairie where everything is permitted and nothing can be prohibited.” Where laws are not respected, “penal consequences” would ensue, he said.
Google’s answer seems obvious (although apparently not to the judge). The company argued that “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 he people they are filming.”
Paradoxically, this ruling may appear so far-fetched in other countries that privacy advocates will seek to pursue their agenda on cases that can make for sounder jurisprudence.