The Italian court decision to hold three Google executives criminally liable for privacy violations raises important questions for human rights and for the technology industry. Privacy and freedom of expression are fundamental rights. How to best to align policies that protect both these rights is an issue that warrants broad consideration, as it impacts both Internet users and a wide range of online intermediaries – from wired and wireless telecommunications carriers, web-hosting companies, online service providers and even device manufacturers.
As the details of the ruling have not been made public yet, we want to be clear that the Global Network Initiative (GNI) is not commenting on the merits of that judgment – a matter that of course turns on the specific facts of the case and the court’s interpretation of Italian law. But the policy issues it surfaces extend beyond Italy and illustrate the challenges faced by the online industry, users, and the public at large to reconcile core societal values and rights such as freedom of expression and privacy that may compete in tragic cases like the present one. The GNI hopes that this decision will inject more urgency into efforts by governments, industry, academia and civil society to address Internet policy concerns in ways that realistically and effectively reflect and integrate respect for free expression and privacy, rather than undermining one right ostensibly to further another. Policy efforts must take into account the global nature and architecture of the Internet, while navigating legitimate cultural and legal differences across democracies in the interpretation of these rights.
The GNI is a group of companies, academics, investors, and human rights groups that has come together to protect and advance online free expression and privacy and, in particular, to fashion operational guidance for companies and to foster collaboration on public policy engagement. While we do not agree on everything, the topic of intermediary liability is one example of an important public policy issue where the stakeholders in the GNI share a consensus view. As GNI noted in August of last year, “When companies are held liable for content uploaded or sent by users, freedom of expression can suffer. Collaborative efforts should help advance policy solutions that better protect fundamental rights to expression and access to information.” (See GNI’s statement on Intermediary Liability here).
Policies creating liability for carriers on the basis of content sent or created by users threaten to chill freedom of expression by incentivizing carriers to restrict the use of their services for any content that could be considered controversial, or to restrict the pseudonymous use of these services. This impetus is particularly strong where definitions of illegal content are vague, encouraging self-censorship and prior restraint on speech. In contrast, where governments have sought to promote growth in the expressive (and commercial) capabilities of these technologies, they have enacted protections from liability when companies act as “mere conduits” for content, or simply cache or host content – this is the case with the European E-Commerce Directive, for example. The application and scope of such “safe harbor” provisions, however, can be controversial when a particular case comes before a court, as the Italian case demonstrates.
The Italian prosecution, in this case, contended that what was at stake was not freedom of expression on the Internet but the responsibility of companies, in particular, to protect privacy rights. In the view of GNI, this case raises a series of issues: first, the appropriate protection of privacy rights; second, corporate responsibility to respect these rights, third, their relationship to freedom of expression, and finally, the appropriate and effective means to align these policy goals.
In particular, we believe both governments and technology companies should fashion policy approaches that align with international standards on human rights, including the European Convention on Human Rights, which protects both freedom of expression and privacy. But we would urge governments and technology companies, in Italy and elsewhere, to consider how these privacy rights can most effectively be protected given how Internet technologies operate and the inter-related rights at issue, and to not set rules with long-term implications based on the facts of any individual case, no matter how disturbing, without careful deliberation on the potential consequences.
For example, consider a deeply troubling user-created bullying video such as the one in question in the Google Italy case. While the need to protect the privacy rights of the individual victim is uncontested, some of the potential means to accomplish that aim are problematic for the very purpose of privacy protection itself. A general rule prohibiting online platforms posting user-created videos (whether intentionally or by serving as a conduit) without consent of the involved individuals, for instance, could actually undermine the privacy we seek to protect because it would necessarily involve determining the individuals’ identity, making contact, authenticating both identity and consent, and maintaining records that could be produced to law enforcement in case of a claim.
Beyond the immense technical and temporal burdens this would impose on the free flow of information online, it raises critical questions about privacy, and the right to remain anonymous. Apply the same rule to a video posted by a human rights activist depicting a victim of police brutality, and the prospect of obtaining authenticated consent and records subject to subpoena becomes deeply disconcerting – both because such a video might never be shown online under such rules, and also because the privacy rights of the individual depicted – or the individual submitting the video – could be compromised in unhelpful ways.
This strongly suggests that we cannot hope to improve the well-being of individuals online or advance respect for fundamental rights without deep exploration and careful consideration of inter-related issues and perspectives. The concept of collaborative approaches with input from multiple stakeholders is at the core of how GNI works on these issues, including our engagement with governments. The results of these efforts inform policymaking, technology development, business choices, and consumer education and awareness. GNI urges stakeholders to jointly address the interaction between privacy and freedom of expression, and the role of online intermediaries to advance these fundamental human rights with attention to the wider consequences of particular policy approaches, and invites others to join us in this important work.