Italian law is in line with European standards in relation to internet service provider liability: Italian legislative decree of April 9, 2003, n.70, faithfully implements EU Directive 2000/31/EC on Electronic Commerce (a European directive is a legislative instrument adopted at the EU level, which is not directly applicable in the member states, but must be separately implemented by each government). Art. 14 of the Directive and Art. 16 of Legislative Decree stipulate that an “information society service” provider who provides hosting services (defined as “storage of information provided by a recipient of the service”) shall not be liable for information stored at the request of the recipient, on condition that it does not have actual knowledge of illegal activity and that, upon obtaining such knowledge, the provider acts expeditiously to remove or disable access to the information. Art. 15 of the Directive and Art. 17 of the Italian Legislative Decree provide that there is no general obligation to monitor the information which providers transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity. Criminal prosecutions of internet company executives are rare, but not unprecedented in Italy (see Eric J. Lynam’s article in Privacy & Security Law).

Discussions of the case have focused on the issue of whether Google is an “internet service provider” (ISP) on the facts. If Google’s role in the provision of the Google Video service is that of an ISP, so the reasoning goes, it should be able to avail of the defenses under the Electronic Commerce Directive described above. On the other hand, if it is deemed a content provider (such as an online newspaper), it will be held responsible for the content that it hosts. In fact, both the European and Italian laws are applicable to “the provision of an information society service” (“prestazione di un servizio della società dell’informazione“), which is  defined as “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service.” (Article 1(2) of Directive 98/34/EC as amended by Article 1(2)(a) of Directive 98/48/EC). According to Google’s lead attorney in the case “Google Video is not a content site and it is not an ISP, it is something else entirely. … 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.” (quoted here). The legal question appears to be whether, in light of the nature of the service, Google could establish that (a) it is providing an “information society service”; and (b) that the service provided by Google Video amounts to “hosting.” If so, the issues should be confined to if Google had “actual knowledge” of the video.

There are, however, suggestions that the Milanese prosecutors are calling for more than prompt take-downs of offensive material. According to La Stampa, they are arguing that Google could relatively easily implement “controls” to prevent such incidents occuring again in the future. Rather disturbingly, they point to the example of Google’s deal with the Chinese authorities to provide a “censored search engine for Chinese use.” Are the Milanese prosecutors really openly calling for the kind of active filtering imposed by the Chinese authorities? Also rather disquieting is the prosecutors’ conclusion that “Google only implements filters when it sees an opportunity for gain,” and its comment that Google’s choice of a freely accessible service was motivated by its desire to increase its revenues by maximizing the diffusion of videos hosted on its services. Is the profit-motive on trial here? The prosecution seems to be suggesting that Google could easily have implemented an effective filter, but refrained from doing so out of an a concern that it might impact on its profits. But on what grounds would Google have seen itself as obligated to implement such a filter, where prompt take-down policies have to date generally been deemed adequately to protect those harmed by offensive content, in Europe and elsewhere?

Vivi Down, the advocacy group which was instrumental in bringing the video to the attention of the Italian authorities, has stated in a press release: