< The Italian Job


Friday, February 26, 2010

BROOKE GLADSTONE: This is On the Media. I'm Brooke Gladstone.

BOB GARFIELD: And I'm Bob Garfield. This week, an Italian court handed out half-year prison sentences to three Google executives. Their crime? Violating privacy law by hosting a video. It’s a decision that challenges basic assumptions about whether Internet companies are liable for content they host and rattles a widely-held understanding of the legal framework of the Web. Siva Vaidhyanathan is professor of Media Studies and Law at the University of Virginia. He says that many in Europe, not least Italian Prime Minister Silvio Berlusconi, who runs an old media empire, have become increasingly resistant to the power of Google. Siva, welcome back to the show.

SIVA VAIDHYANATHAN: Thanks, Bob. It’s good to be back.

BOB GARFIELD: Describe for me briefly the case that was at the heart of this decision.

SIVA VAIDHYANATHAN: Well, back in 2006, some hooligans posted a video to YouTube. They were in Italy. They posted it to the Italian version of YouTube. It showed these boys harassing and beating up a disabled person, and it was quite an alarming video, by all accounts. It was apparently up there for a number of weeks before Italian authorities complained to Google, and Google did what it always does in basically its stated policy, and in many places the law, to immediately remove the video. Italian authorities thought, though, that this was a good opportunity to make a point about the changing standards of responsibility and the role that Google and YouTube play in our media environment, and they decided to go after Google executives with criminal charges. This has been sort of in the works for more than a year, but I think we were all surprised by the fact that they actually convicted three Google executives this last week of privacy violations.

BOB GARFIELD: All right, now, in the United States, under the Digital Millennium Copyright Act, the remedy that Google chose, that is, to remove the offensive material the moment it was notified, would have been more than enough to hold it harmless from any liability. Neither Google nor any publisher nor any other search engine nor any ISP can be held responsible for content posted on its platform. And the EU has an almost identical law. How could the Italians have prosecuted this, to begin with?

SIVA VAIDHYANATHAN: Well, the EU works in funny ways, right? There can be a standard at the European level and then there can be a specific higher-level standard in local law, and there can also be questions about enforcement and interpretation, and so forth. It’s also important to remember, though, that this is a general principle of network communication. We don't want, for instance, the phone company to be liable for people planning crimes over the phone or engaging in phone scams, right? We don't want that because the phone company would immediately roll back its service from people it considered suspect or neighborhoods it considered risky. And for the sake of having a network that works well, we absolve those companies of responsibility. It’s a longstanding principle. It’s one that makes sense to just about everybody, except the Berlusconi [LAUGHS] government, apparently. He has been subject to a lot of ridicule, a lot of criticism in the big areas of emerging media that he does not control.

BOB GARFIELD: Is Google a particular target for regulators and legislators and politicians in Europe, more so than in the U.S.?

SIVA VAIDHYANATHAN: Yeah, it certainly is. The two biggest flash points in Europe right now are Google Street View and Google Book Search. In places like Germany, in places like Switzerland and Greece, Google has faced tremendous backlash over Google Street View for, you know, deep historical reasons. Anyone who ever lived under the Stasi or the military junta in Greece is going to be concerned about any powerful party making an account of people’s movements and presence. At the same time, Google Book Search, of course, directly confronts the pervasive awareness within Europe of the importance of cultural policy and the role of culture in national identity, in a sense of everyday quality of life, the sort of conversations that we tend not to have in the United States. Now, we've just found out this last week that Google’s also under intense antitrust scrutiny for how it either offers or degrades access to competing search engines over there. Basically, European regulators are going to ask Google to peek under the hood.

BOB GARFIELD: [LAUGHS] They want to see the Google algorithm? You know, that’s like the secret sauce.


BOB GARFIELD: That’s Merchandise 7X, the Coke formula. It’s the nuclear secret.

SIVA VAIDHYANATHAN: That’s going to be a major showdown within Europe. Google is overwhelmingly the dominant search engine in Western Europe. In places like the Netherlands it’s like 96 percent of the search market. It’s much more powerful in Europe than it is even in the United States, where it’s really only about 70 percent. And remember, here’s the thing about the Web. The Web, we've decided long ago, shall be imperfectly regulated, if regulated at all, and we were going to be nervous about states or even the U.N. doing anything to touch how the Web will develop. Well, Google stepped into the vacuum and has essentially become the soft power of the Web, having a large say in what is important and what is true on the Internet. And that’s the sort of thing that makes people deeply nervous to grant so much power to a fairly benign dictator, but a dictator nonetheless.

BOB GARFIELD: All right, Siva. Thank you.


BOB GARFIELD: Siva Vaidhyanathan is associate professor of Media Studies and Law at the University of Virginia.