Can I Upload or Not?

The ruling of the Court of Milan, whose motivations have recently become known, which found three Google managers guilty of six months of imprisonment for the unlawful handling of private data, has been hotly debated. The facts are known: an autistic child is verbally and physically abused by some schoolmates who film the whole thing with a cell phone and then upload it on Google Video. The video stays online for two months and gets to the top ten of the most fun videos (sic), before being removed due to the intervention of the Italian Postal Police. But what are the implications of the Italian judicial decision? The first is possibly the least interesting. It just confirms in what kind of esteem the giant from Mountain View holds our institutions. The comment by CEO Eric Schmidt on the Financial Times speaks for itself: ""The judge was flat wrong. So let's pick at random three people and shoot them. It's bullshit. It offends me and it offends the company." He didn't take it well, did he?

But Schmidt and others are in error when they dismiss the whole thing as a blunder made by Mr Magi, the Milanese judge. In fact, an important effect of the decision is that from now on it will be much harder for Google to elude the obligations imposed by Italian and EU regulations by claiming the principle of "no server, no law". According to this principle, the fact the Google's servers are located in Silicon Valley shelters them from Italian laws for the protection of privacy. The judge found that the laws are applicable and that the Italian judge is competent whenever the handling of personal data takes place in Italy, such as with the diffusion of videos on Google Italy. But if Italian and European norms are applicable, then providers from now own will have to take their obligations seriously when it comes to dealing with sensitive date. But the judge did not list among these obligations the preventive control of all the uploaded materials, contraary to what some have claimed. Not only because this is technically impossible, but because it would go against Italian and EU law which exempts Internet providers from the duty of surveillance on user activity. What Google should have done and should do is to make clear to users who want to upload videos where third persons are featured, that they must first obtain their written authorization before doing so.
In spite of the rhetorical tones which have portrayed the decision of the Court of Milan as an attack on the freedom of expression, at the root of the case there is the problem of rebalancing a whole business model. In other words, how approriate and cost-effective is it for Google to spend more to respect Italian and EU law on the protection of personal data?
Two considerations now, one legal, the other economic - knowing full well I'm swimming against the tide. First, I don't think the exemption of responsibility of ISPs extends to all Google services. How can you say that Google video (and now YouTube) with its sophisticated systems of indexing and filtering have no control on the data of the service provider? Second, it's likely that the e-commerce directive adopted in 2001 and which states the principle of the exemption of responsibility had in mind those ISPs which supplied a connection to the web in exchange for a fee, and not those, like Google, who make their money not from the connection service, which is free, but from the advertising hosted on the platform.