Italian Court Mulling Criminal Case Against
Top Google Officials, Including Privacy Chief
ROME — The first step of the criminal defamation
and privacy trial against four top-ranking officials
from Internet powerhouse Google Inc. concluded
Feb. 3 in just 20 minutes, after a Milan Tribunal Court
(Tribunale di Milano) judge gathered the procedural information
he needed and adjourned until Feb. 18, when
he will decide whether the case should continue.
The Feb. 18 hearing will decide whether Italy has jurisdiction
in the case, and, if it does, whether the Milan
court itself has jurisdiction.
The defendants are Peter Fleischer, Google’s global
privacy counsel; David Drummond, the company’s senior
vice-president and chief legal officer; George
Reyes, Google’s former chief financial officer; and, according
to prosecutors, Arvind Desikan, the European
director of Google Video.
According to Italian media reports, Google’s Fleischer
was served a warrant when he arrived in Milan
Jan. 23 to give a lecture at Milan’s Bocconi University.
Sources told BNA that neither Fleischer nor any of the
other principal defendants were in Milan for the Feb. 3
hearing. Google, Google-Italia, and Google Video are
not named as defendants in the case.
Case Unusual, Not Unprecedented.
Italian legal experts
familiar with the case told BNA it is unusual that company
executives face personal criminal charges for the
activities of the company that employs them, but not
completely unprecedented. Since 1999, officials from at
least five Italian ISPs or Web portals have been tried for
abuses of Italian data protection laws, copyright laws,
or public decency laws. But none served jail time, and
none of the cases was as high profile as the case involving
Google could prove to be.
Video Showed Taunts of Down Syndrome Boy.
stemmed from complaints filed by Down syndrome advocacy
group Vivi Down against Google and four Turin
youths. The complaints were based on a 2006 video that
showed the youths falsely identifying themselves as
members of Vivi Down to a boy with Down syndrome
and then verbally and physically abusing the boy. The
video was uploaded by one of the youths to Google
Video—the company’s site for individuals to post
videos—but removed within hours of a complaint to
Google that it was offensive.
With the help of Google, law enforcement tracked
down the youths, who were prosecuted and sentenced
by an Italian court to one year of community service in
a center for children with Down syndrome. But the case
against Google is more complicated.
Guido Camera, the attorney for Vivi Down, said
Google is in violation of Articles 13, 17, and 26 of Legislative
Decree 196/2003 governing access to personal
data—in short, that Google Video was a party to the
defamation against Vivi Down.
‘‘The Italian law says that if a party has the power to
stop something illegal from happening but that they did
not then they share in the guilt with the party that performed
the illegal act,’’ Camera told BNA Feb. 4.
But a spokesman for Milan-based Google-Italia, the
company’s Italian subsidiary, told BNA that the company
was confident the case would be thrown out once
the facts are studied in depth.
‘‘Google did everything asked of it by immediately removing
the video when the complaint was made, to assisting
law enforcement to track down the boys involved
in the case,’’ the spokesman said. ‘‘It is difficult
to argue that the company should have behaved differently.’’
Google Video: Content Site, Something Else?
heart of the case is whether Google Video—and by extension,
other sites that host content posted by the public,
such as Google-owned YouTube, Facebook, eBay Inc., or Craigslist—should be viewed as a content site
akin to sites operated by newspapers and broadcasters,
which can be held responsible for the information they
host, or whether it is something different.‘‘Google Video is not a content site and it is not an
ISP, it is something else entirely,’’ Pisapia Giuliano
Pisapia, Google’s lead attorney in the case, told BNA. ‘‘Google is an instrument people use to locate content produced by someone else. It is a mistake to try to make
it fit into the definition for something different.’’
Italian law that has been in force since 2003 states
that Internet service providers (ISPs) are not responsible
for monitoring third-party content, though they
are required to remove the content if they receive a
valid complaint about it.
According to the prosecutor’s office, the company
should be viewed as a content provider—the same category
governing newspapers—and as such is responsible
for the content it hosts.
Pisapia, a former member of Parliament and one of
Italy’s best-known lawyers, argued it would be difficult
to find Google guilty because it is impossible to say
what they should have done differently.
According to a statement from Google’s Paris offices,
about 1.5 million videos are uploaded to Google Video
every week, making ad hoc monitoring impossible. ‘‘They could not have done anything differently,’’
Pisapia said. ‘‘They did not produce the video, and
when they received a complaint about it they removed
the offending video within five hours. If the argument is
that they should have evaluated the video before it was
posted that is a dangerous precedent because preventative
monitoring is a kind of censorship, and it could kill
Google: Case Is ‘Totally Wrong.’
A Google spokesman
at the company’s Mountain View, Calif. headquarters
said the company believed the charges against it are
According to the spokesman, ‘‘we feel that bringing
this case to court is totally wrong. It’s akin to prosecuting
mail service employees for hate speech letters sent
in the post. What’s more, seeking to hold neutral platforms
liable for content posted on them is a direct attack
on a free, open Internet. We will continue to vigorously
defend our employees in this prosecution.’’
The spokesman added: ‘‘As we have repeatedly made
clear, our hearts go out to the victim and his family. We
are pleased that as a result of our cooperation the bullies
in the video have been identified and punished.’’
Camera, the attorney for Vivi Down, said the group is
not seeking jail time against the Google defendants.‘‘We are simply trying to stimulate a debate about
Down syndrome and about the role companies like
Google Video should play in an open society,’’ he said.
Next Step, Options for Judge.
The next step in the litigation
is the Feb. 18 hearing. If the judge rules that Italy
lacks jurisdiction in the case, it will be thrown out. That
is a possibility: Italy’s data protection authority said in a
Feb. 2 opinion that did not specifically reference the
Google matter that it did not believe Italian data protection
laws were enforceable beyond Italy’s borders. That
could be relevant, as Google is based in the United
States, and the offending video was likely stored on the
company’s servers in California.
Google has made similar arguments in other contexts,
including in a dispute with European Union data
protection authorities over whether the EU Data Directive’s
restrictions on the use of personal data apply to
In a September 2008 letter to the Article 29 Working
Party, which is made up of DPAs from each of the 27
EU member states, Fleischer asserted that the company’s
Europe-based data centers are controlled by servers
at its headquarters in the United States and therefore
are not subject to EU data protection law (7 PVLR
If the judge in the current litigation rules Italy does
have jurisdiction, he could also rule that the Milan Tribunal
court does not have jurisdiction. That would slow
the case but not stop it, as it would start anew in a court
in Turin, the city 50 miles to the west of Milan where
the act in question took place and where it was uploaded
to Google Video—or the case could possibly be
moved to Rome. The case is being tried in Milan at least
in part because both Vivi Down and Google-Italia are
based in the city.
Meanwhile, the Spanish Data Protection Authority
Feb. 4 announced that it had fined an individual for
posting a taunting video on YouTube without gaining
the data subject’s consent (see related report in this issue).
Third Individual in Case, Prosecutors Say.
told BNA Feb. 5 that a third individual is seeking
damages against Google.
Two officials from the Milan prosecutors office, who
asked not to be further identified, said that in late 2005,
a Milan-based businesswoman had a dispute with
Google after a judge ruled that slanderous information
about her had to be removed from the online archives
of several Italian newspapers that had published the information.
The newspapers did as ordered, but the information
remained accessible via Google’s cache,
prosecutors said. Italy’s Data Protection Authority ruled
in favor of Google in 2006.
Raffaele Zallone, the woman’s attorney in the 2005
case, told BNA that his client was part of the current
case as a ‘‘parte civile,’’ a role that makes her eligible to
collect damages even though her circumstances are not
necessarily relevant to the current case.
Milan prosecutors said in an interview with BNA that
they had a document that showed Google Video should
be seen as a content site. According to the prosecutors,
an internal Google document showed that the company
was alleged to have schemed to dominate the online
video market in Italy by hosting more Italian videos
than any other site.‘‘The document proves that Google Video is not a
passive vehicle but rather an aggressive competitor
seeking to differentiate itself from its rivals,’’ one of the
prosecutors said. ‘‘That proves they were concerned
about content and that they should be held responsible
for the content they present to the public.’’
A Google spokesman in California declined to comment
on the allegations about the paperwork from the
BY ERIC J. LYMAN
Italian Municipality Files Suit Connected to Claims Against Google Officials
ROME — The ombudsman for the Municipality of Milan told BNA Feb. 5 that his office has filed a secondary
lawsuit against four top officials of Google Inc. who are on trial in Milan for alleged criminal defamation
and civil privacy violations.
Ombudsman Alessandro Barbetta told BNA that his office tacked a civil suit onto the criminal trial against
Google officials filed by Milan prosecutors. The ombudsman’s claim could increase any final monetary settlement
by 50 percent.
Barbetta said that Art. 36 of Law 104 from 1992 gives the ombudsman the right to join a criminal trial on
behalf of a minor or a disabled person.
In the matter before the Milan court, the central figure is both: a minor with Down syndrome who was
verbally and physically abused by four Turin youths in 2006. In the episode, one of the offenders claimed to
be a member of Vivi Down, a Down syndrome advocacy group, and the incident was made into a 191-second
film that one of the youths uploaded to Google Video. The Google officials are charged with contributing to
the defamation of the advocacy group, Vivi Down.
According to Giuseppe Schiavello, a Rome-based partner with the law firm Macchi di Cellere Gangemi, it
is not unusual for an ombudsman to join a criminal case such as the one involving the Google officials. ‘‘This
secondary case will be decided based completely on the same factual circumstances as the primary case,’’
Schiavello told BNA.
That means that if the primary case is thrown out because the judge rules that neither Italy nor the Milan
court have jurisdiction, the ombudsman’s case will be rejected as well. If Google is found guilty but no financial
settlement is awarded, the ombudsman will receive no cash.
In most cases, a secondary case brought by an ombudsman would add one-third to any financial penalty
charged against the defendants. But Schiavello noted that in cases involving disabled parties, the addition is
upped to 50 percent. Financial damages won in the secondary case must be used for the public good.
Barbetta, the ombudsman, said any settlement from the case would be used to pay for a Down syndrome
public awareness campaign in the Milan area.
BY ERIC J. LYMAN