Google's liability in Italy
by Margot | February 25, 2010 | lamp | Comments Off
Google has just been held criminally liable in Italian court for video content it hosted.
This is a horrific outcome. Here’s why, against a backdrop of US law:
Newspapers in the US may be liable for libel in what they publish (under a strong pro-free-press standard, of course, established in NYTimes v. Sullivan). This makes sense: if a publication has actual control over the content it publishes, it can be understood to be “responsible” for that content in a legal sense.
But in the online realm, online publishers such as websites or ISPs (like Comcast) are granted immunity from libel liability under the Communications Decency Act (CDA) ยง 230. Again, this makes sense: if you’re Comcast or Google and some user posts libelous information online, there’s no guarantee you’ll even have seen the posting, let alone should be held responsible for it on a more theoretical level of understanding “authorship”.
This is about leaving the conduits for newsgathering and news distribution out of the legal fray– especially when they don’t have any real initial control over what’s being posted. Yes, this raises questions about who is, in fact, responsible– and runs up against problems when trying to identify defendants.
But if governments start requiring ISPs and OSPs to pre-screen for libelous or “privacy-invading” content, which is what Italy has done to Google, then the chilling effects on online speech will be HUGE.
And the chilling will take place on the level of distribution, which is even more problematic. An intermediary like Google has little legal incentive to stand up to a government on behalf of user speech, except for their own inconveniences in screening. What’s to stop a newly-liable Google or Comcast from running automated filters on speech to determine if it’s “private”, “libelous”, or otherwise illegal? (Isn’t this effectively what’s happened/is happening in the copyright realm?) These are nebulous legal terms that should be subject to legal interpretation, not mechanized filters.
Keeping intermediaries liability-free encourages them not to get involved with this kind of screening. Making them liable will drastically change the nature of online platforms as centers of information gathering and distribution.
