Last year, the Italian government brought criminal charges against four Google employees for allowing a video to be posted online that featured four students bullying a handicapped teenager.

It should be noted that in the United States, Google and its employees would have been protected under the Communications Decency Act, which provides a safe harbor provision, protecting online service providers and users from action against them for the actions of others.

The video was posted on Google Video in 2006 and showed the four students making fun of the handicapped teenager in a classroom in front of his classmates.  The four students then proceeded to hit the handicapped teenager over the head with a box of tissues.

The Italian government conducted a two-year investigation into the incident and concluded that the video, just over three minutes in length, violated Italian privacy and defamation laws.  The Italian government asserted that Google violated privacy laws because it failed to obtain consent from all parties involved prior to uploading the video.

The employees prosecuted are David Carl Drummond, chief legal officer; George De Los Reyes, former Chief Financial Officer; Peter Fleitcher, privacy counsel; and Arvind Desikan, former head of Google Video Europe.

Google Video does not screen content before it is uploaded and relies on users to point out offensive conduct.  Google engineer, Jeremy Doig, testified that the video had been uploaded using servers in the United States and that Google’s Italian staff had not been involved in the process.  Doig also stated that Google removed the video from the Google Video site within hours of administrators being notified of its existence. 

A Google spokesman was quoted by The Wall Street Journal as saying that there was no basis for the legal action because Google is not required to monitor third party content on its sites.  It is only required to take down offending content when it is notified.

Also, Google cooperated with Italian prosecutors, providing information on who posted the video.

Google critics assert that Google allowed the offensive video to remain online for two months despite complaints from users.  Google countered that such “complaints” were in the comments posted under the video. The “complaints” were not reports of abuse submitted by users to Google.

The trial was adjourned until November 25, 2009, at which point the prosecutors will deliver their summation.   A verdict is expected in December 2009.

If Google is found liable for breach of privacy and/or defamation, Google and other companies that allow individuals to upload videos would have to change their business model.  A liability finding could have ramifications on search engines as well.  

For further information on the implications of this proceeding, contact Arent Fox trademark attorneys Tony Lupo and Sarah Marks.

Anthony V. Lupo
lupo.anthony@arentfox.com
202.857.6353

Sarah I. Marks
marks.sarah@arentfox.com
212.492.3307