For the second time in the past few months Google has been punished by a court outside the US for content posted by users on one of its owned and operated sites. In February an Italian court imposed a criminal privacy conviction on Google executives for the appearance of a video, showing the bullying of a boy with Down’s syndrome, on YouTube. Google is currently appealing that verdict. And now, in Brazil, a civil fine of just over $9,000 has been imposed by a court for libel against Google.
Google was held to have defamed a priest by allowing an anonymous Internet user’s post on Orkut, which called the priest a “pedophile.” The judgment upheld an earlier, lower court ruling from 2008. Google owns social-networking site Orkut, which has a significant following in Brazil.
Suits like this would not, generally speaking, succeed in the US.
There’s a great deal at stake here for Google, especially with the more sensational and higher-profile Italian case. Google advocates a “notice and takedown” regime vs. what appears to be a kind of strict liability standard implicit in these cases: the offending content appeared and the law was held to have been violated.
As a practical matter there’s almost no way to operate these massive sites, populated largely with user-generated content, and police that content for offensive or illegal speech or other violations (e.g., copyright, privacy) as it appears. While you could scan or monitor for the appearance of selected words and phrases and hold those posts or uploads for review and approval that practice would operate as a kind of quasi-”prior restraint” against speech. But that kind of approach might be what certain governments or legal systems would advocate.
The emerging question is: what sort of burden is going to be placed on Google and other online publishers outside the US to police content in quasi real time vs. responding when someone identifies a violation and requests content removal?
Libel laws in the US are very well established for traditional media; however there’s a “double standard” of sorts that allows online publishers to avoid liability for user-generated content that would not be similarly permitted offline. Yelp can’t be sued for a defamatory review (though the individual can) while the NY Times couldn’t print or publish a libelous review. To some degree that freedom and flexibility was granted to “new media” to allow it to develop — as much as it is a recognition of the practical enforcement challenges already discussed.
As online becomes the center of publishing “going forward,” how will the law evolve? Will we see more burdens and controls imposed on online publishers?
The Italian and Brazilian courts are effectively not allowing or recognizing any distinctions between traditional media and online or the challenges of managing content posted or uploaded by millions of users daily. They’re also trying to assert domestic laws against a global corporation that seeks to have a standard policy across markets internationally.
Similar issues originally were raised, as long as a decade ago, with the sale of Nazi literature and memorabilia on eBay and Amazon, which is legal in the US but illegal in Germany. In those cases, the companies had to modify their rules and offerings to accommodate German law.
But that was largely prior to the current era of user-generated content.