Past December 2009, Facebook contacted its user to inform them of the existence of this class action.
If you were wondering what happened, a $9.5 million settlement has been approved.
Here you find more details.
Showing posts with label Litigation. Show all posts
Showing posts with label Litigation. Show all posts
March 18, 2010
March 4, 2010
Italian Republic v. Google Video. Why Was Google Convicted?
Three of Google's executives were recently convicted by the Court of Milan for violating Italian privacy laws. Google's executives were held liable because Google Video, hosted, allowed comments and did not promptly (or promptly enough upon notice) take down a video portraying a disabled kid getting abused by his schoolmates. The schoolmates who actually uploaded the video were convicted and sentenced to 10 months of community service. You may find a more complete description of the facts here.
The ruling is subject to appeal and Google has said it will challenge the ruling. Many people have commented on the case reflecting upon its deep implications over freedom of speech, privacy law and the Internet business model. I personally share the concern that prior control over UGC might dangerously compress freedom of speech, yet the solution certainly is not to neglect users' and third parties’ privacy protection. The bottom line is that such a ruling may shake the foundations of the Internet industry and that nobody I know has a clear idea about a good trade-off among the many conflicting interests.
In this post, however, I will more simply focus on explaining the probable reasons for the Google conviction. I say "probable" because the full opinion has not yet been published. Still, I have an impression of the probable reasons for the conviction based upon reading the statements released by Google's attorney and the Prosecutor in charge of the case.
Reason #1. There is no safe harbor for privacy violations. This may be surprising for most Internet companies but, as a matter of law, EU privacy regulation in general, and the Italian one in particular, do NOT apply the safe harbor exemption to matters concerning the right to privacy. It may appear like a loophole in the system, but probably, when drafting the E-Commerce directive, the EU legislator did not have in mind a service totally based on UGC, such as a video sharing platform. Directive 2000/31/CE shields mere conduit, cashing and hosting services against commercial liabilities, but not against the rights "of individuals with regard to the processing of personal data...".
Article 1, §5, lett. b of the E-Commerce directive says: "This Directive shall not apply to: ...
(b) questions relating to information society services covered by Directives 95/46/EC and 97/66/EC."
Guess what subject matter is regulated by Directive 95/46/EC?
Pretty straight forward, isn't it? If there is no safe harbor for a privacy violation --> liability of the service provider for contributing to the criminal conduct.
The same regulation applies in Italy by virtue of the Legislative Decree n. 70, 2003 art. 1, comma 2 lett. b which precludes the application of the safe harbor regime (art. 14 and ff.) for matters involving privacy rights.
Reason #2. Google violated the Italian Personal Data Protection Code. Google's counsel released a statement indicating the rules allegedly violated by Google, as specified in the indictment: art. 23, 26 and 17 of the Data Protection Code. art. 23 and art. 26 (here an official version in English) provide that before processing any personal data it is necessary to seek consent of the owner of the data. This is necessary moreover (written consent is required) if the processing concerns sensitive data, such as the existence of a heath condition. It is probable that the Court considered that depicting the likeness of a person affected by Down Syndrome is sufficient to constitute "processing of sensitive data", considering the apparent and recognizable existence of a heath condition in the person portrayed.
Art. 17 provides a general obligation to consult with the Data Protection Authority before initiating any potentially dangerous processing of personal data. The violation of such article may be construed as creating liability for other independent violations. We'll see when the opinion is published...
Reason #3. Google did not take down the video promptly. Proof of a prompt take down is crucial to prove or disprove damages. In fact, damages are necessary for the application of the criminal sanction set forth in art. 167 of the Data Protection Code.
Google took the video down after the police made such request. The victim's representative argued that the video was actually accessible for about 2 months and, even after the video was flagged by some users and a take down notice filed by the victim's representative, Google did not respond with the requested promptness.
Thus, the Prosecutor accused Google of being inefficient and untimely in taking down the video since, as Google's deputy general counsel for Europe also admits, Google took the video down only when the police asked to do so, many days after the first flagging. However, there is no clear information about the timeline of mentioned facts. We'll see...
Furthermore, the Court probably concluded that the accessibility of the video for about 2 months, coupled with the significant amount of views and comments, gave Google notice (or should have given Google notice) of the existence of the video. This is my speculation. We'll see...
Unfortunately, there is no black letter law applicable to take down notices for privacy violations. In fact, nothing like the DMCA exists in the EU even with respect to IP rights. I bet Google misses the clear cut provisions of the DMCA when dealing with the EU.
In fact, the Prosecutor remarked about Google's vague and evasive attitude towards certain requests for discovery. It turns out that Google was unable to restore the original page with the comments or to produce the first flagging of the video. Google’s defense is, according to the Prosecutor, that producing this evidence was too costly and complicated for Google's engineers. Well, the Court might have thought it wasn't...
The ruling is subject to appeal and Google has said it will challenge the ruling. Many people have commented on the case reflecting upon its deep implications over freedom of speech, privacy law and the Internet business model. I personally share the concern that prior control over UGC might dangerously compress freedom of speech, yet the solution certainly is not to neglect users' and third parties’ privacy protection. The bottom line is that such a ruling may shake the foundations of the Internet industry and that nobody I know has a clear idea about a good trade-off among the many conflicting interests.
In this post, however, I will more simply focus on explaining the probable reasons for the Google conviction. I say "probable" because the full opinion has not yet been published. Still, I have an impression of the probable reasons for the conviction based upon reading the statements released by Google's attorney and the Prosecutor in charge of the case.
Reason #1. There is no safe harbor for privacy violations. This may be surprising for most Internet companies but, as a matter of law, EU privacy regulation in general, and the Italian one in particular, do NOT apply the safe harbor exemption to matters concerning the right to privacy. It may appear like a loophole in the system, but probably, when drafting the E-Commerce directive, the EU legislator did not have in mind a service totally based on UGC, such as a video sharing platform. Directive 2000/31/CE shields mere conduit, cashing and hosting services against commercial liabilities, but not against the rights "of individuals with regard to the processing of personal data...".
Article 1, §5, lett. b of the E-Commerce directive says: "This Directive shall not apply to: ...
(b) questions relating to information society services covered by Directives 95/46/EC and 97/66/EC."
Guess what subject matter is regulated by Directive 95/46/EC?
Pretty straight forward, isn't it? If there is no safe harbor for a privacy violation --> liability of the service provider for contributing to the criminal conduct.
The same regulation applies in Italy by virtue of the Legislative Decree n. 70, 2003 art. 1, comma 2 lett. b which precludes the application of the safe harbor regime (art. 14 and ff.) for matters involving privacy rights.
Reason #2. Google violated the Italian Personal Data Protection Code. Google's counsel released a statement indicating the rules allegedly violated by Google, as specified in the indictment: art. 23, 26 and 17 of the Data Protection Code. art. 23 and art. 26 (here an official version in English) provide that before processing any personal data it is necessary to seek consent of the owner of the data. This is necessary moreover (written consent is required) if the processing concerns sensitive data, such as the existence of a heath condition. It is probable that the Court considered that depicting the likeness of a person affected by Down Syndrome is sufficient to constitute "processing of sensitive data", considering the apparent and recognizable existence of a heath condition in the person portrayed.
Art. 17 provides a general obligation to consult with the Data Protection Authority before initiating any potentially dangerous processing of personal data. The violation of such article may be construed as creating liability for other independent violations. We'll see when the opinion is published...
Reason #3. Google did not take down the video promptly. Proof of a prompt take down is crucial to prove or disprove damages. In fact, damages are necessary for the application of the criminal sanction set forth in art. 167 of the Data Protection Code.
Google took the video down after the police made such request. The victim's representative argued that the video was actually accessible for about 2 months and, even after the video was flagged by some users and a take down notice filed by the victim's representative, Google did not respond with the requested promptness.
Thus, the Prosecutor accused Google of being inefficient and untimely in taking down the video since, as Google's deputy general counsel for Europe also admits, Google took the video down only when the police asked to do so, many days after the first flagging. However, there is no clear information about the timeline of mentioned facts. We'll see...
Furthermore, the Court probably concluded that the accessibility of the video for about 2 months, coupled with the significant amount of views and comments, gave Google notice (or should have given Google notice) of the existence of the video. This is my speculation. We'll see...
Unfortunately, there is no black letter law applicable to take down notices for privacy violations. In fact, nothing like the DMCA exists in the EU even with respect to IP rights. I bet Google misses the clear cut provisions of the DMCA when dealing with the EU.
In fact, the Prosecutor remarked about Google's vague and evasive attitude towards certain requests for discovery. It turns out that Google was unable to restore the original page with the comments or to produce the first flagging of the video. Google’s defense is, according to the Prosecutor, that producing this evidence was too costly and complicated for Google's engineers. Well, the Court might have thought it wasn't...
December 28, 2009
The Pirate Bay Case - Italian Supreme Court's Ruling (New Safe Harbor Created?)
The issue with the TRO was mainly concerning the possibility to restrain a website by ordering the ISP not to connect to such identified URL and respective sub-pages. Although such issue of practical and effective restriction of the access to a website is very interesting, I find that another notable part of the ruling concerns the "fumus commissi delicti", AKA the reasonable probability of success on the merits.
The Court anticipated TPB's liability and meanwhile mentioned a couple of interesting things about the standard for contributory infringement and (perhaps?) a new safe harbor.
The Court acknowledged that the primary infringement was undoubtedly conducted by the website-users for being them the authors of the uploading. Yet, TPB is liable because it contributed to the relevant conduct by indexing the torrent files, and by providing a search engine to access such files. Hence, the threshold for contributory infringement lays with these additional activities which constitute sufficient basis to charge TBD as co-conspirator in the infringing conduct ("concorso nel reato").
But the very interesting is that, according to the Court, TPB would be innocent if its conduct was "completely agnostic" (i.e. just unaware...) of the content of the files uploaded by users. Hence, this decision adopts a very severe notion of control with respect to the infringing conduct, being mere knowledge sufficient.
The Court goes forward and surprisingly states that such agnostic situation is present in the social networking sites because in such SNS the indexing and listing of files is performed at a peripheral level, by users. Thus, only the users (uploading files) may be found liable. And this is pretty much where
Anyway, few things seem clear enough: 1) providing a file-sharing tool is O.K. as long as the files are not indexed and/or searchable (so... Google beware!); 2) if torrents, links or other content are "agnostically" stored is still O.K., 3) if you share copyrighted material on a social network you may end up being the only one liable.
Here below in the image is the relevant part of the ruling... in Italian.
December 17, 2009
Mediaset Wins Injunction Vs. Youtube (UPDATED)
This post is in Italian... Sorry :)
Leggo il post di Matteo Flora, consulente di Mediaset, che diffonde il comunicato della vittoria di Mediaset contro Youtube nel contenzioso riguardante la rimozione di contenuti Mediaset su Youtube.
Queste alcune mie considerazioni "a caldo", cosi' come postate in commento al blog di Matteo:
Leggo il post di Matteo Flora, consulente di Mediaset, che diffonde il comunicato della vittoria di Mediaset contro Youtube nel contenzioso riguardante la rimozione di contenuti Mediaset su Youtube.
Queste alcune mie considerazioni "a caldo", cosi' come postate in commento al blog di Matteo:
Davvero non capisco cosa ci sia di "storico" nel fare rimuovere da Youtube contenuti gia' accertati "illeciti". E non ci voleva certo il giudice ad accertare che "il Grande Fratello" sia un prodotto proprietario. Quanto alla responsabilita' (per "contributory/secondary infringment" forse, vista la qualifica di editore) di Youtube, la decisione ristabilisce una nozione di controllo che riporta la giurispurdenza italiana ai tempi di Napster.
Comunque il dispositivo della decisione e' ASSOLUTAMENTE OVVIO
[-- l'immediata rimozione di immagini fisse o video relative al "Grande Fratello" decima edizione;
-- di terminare immediatamente la violazione dei diritti connessi al GF;
UPDATE Preciso che non si tratta di compensazione in senso tecnico, come domanda o eccezione riconvenzionale (nel qual caso sarebbe necessario un credito). Ma si tratta di un effetto di limitazione/eliminazione del danno (compensa in senso economico), da valutarsi ai sensi del 1223 e ai sensi del 1226 c.c.. In mancanza di “conseguenze economiche negative” Mediaset ha diritto solo alla tutela ingiuntiva e i danni morali... Visto che nel nostro ordinamento non esistono danni punitivi.-- il respingimento delle richieste di entrambe le parti.]
Infatti, pittosto che una costosa lite dinanzi all'AGO Mediaset avrebbe, altrattanto efficaciemente, potuto invocare una rimozione (Take Down) con una DMCA Take Down Notice (regime interamente recepito dai TOS di Youtube). E avrebbe probabilmente potuto trovare un accordo con Youtube sulle modalita’ per l’identificazione dei contenuti ritenuti infringing. Del resto fanno cosi’ content provider della rinomanza di Lucas Film, Universal Studios, CBS, etc. etc. Ancora, molti di questi content provider sono riusciti a concludere con Youtube accordi di rev-sharing relativi agli ads collocati nelle pagine con contenuti proprietari oltre ad includere nei video meccanismi di promozione diretta dei propri contenuti. La scarsa conoscenza del mezzo e la ricerca di una sentenza di grande risonanza mediatica hanno invece portato a questa strategia (processuale e di business) poco lungimirante e difficilmente remunerativa, IMHO. Sono in attesa di vedere come nel merito Mediaset quantifichera’ i danni… considerando che potrebbe vedersi eccepire, in compensazione, le addizionali revenues generate dalla maggior diffusione dei propri contenuti. Noto a margine che in Italia non esistono neppure i treble damages da applicare al willful infringement… Per cui: se l’effetto positivo e’ superiore alla effettiva diminuzione degli ascolti o del valore dell’opera protetta: niente danno e la sanzione dovra’ essere solo ingiuntiva…. Cioe’ la stessa cosa che si sarebbe potuta ottenere in via non contenziosa compilando un modulo di poche righe. Ma, come si dice... À la guerre comme à la guerre!
December 9, 2009
Facebook Offers to Settle Privacy Class Action
Yesterday I received an interesting message from Facebook (not my friends on Facebook...):
This was already on the media some weeks ago. Now, you can also read all the details and documents regarding this case HERE. Facebook admitted no liability for the Beacon case. It is very generous that Facebook offered to pay $9.5 to establish a non-profit...Facebook is sending you this notice of a proposed class action settlement that may affect your legal rights as a Facebook member who may have used the Beacon program. [...]
Under the proposed settlement, Facebook will terminate the Beacon program. In addition, Facebook will provide $9.5 million to establish an independent non-profit foundation that will identify and fund projects and initiatives that promote the cause of online privacy, safety, and security. [...]
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