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Google Vividown – the Appeal decision

As anticipated, Google’s managers have been acquitted by the Italian Court of Appeal in the privacy-related dispute famous as Vividown. The reasoning of the decision has now been published and it is interesting to see that the court based its decision on the absence of any monitoring obligation on Google as to the videos published on Google Video.

 

Indeed, according to the court not only was Google not obliged to monitor the contents published by the users, but also, given the volume of videos that had been published on Google Video on a daily basis, a potential monitoring obligation would have triggered a filtering obligation that could not be technically totally reliable especially at the time of the challenged events in 2006.

Interestingly, the court referring to previous case laws deemed that Google is an “active hosting provider” as it was not only providing a platform to enable its users to upload their contents, but also offering search keywords functionalities, indexing of the contents and usage of the contents for advertising purposes. However, despite of such circumstance, Google cannot be deemed subject to monitoring obligations also because this would imply a restriction of the freedom of speech.

Moreover, the decision refers to the applicability of Italian data protection law to Google arguing that even if its headquarter is in the US, the Italian company of the Google group, Google Italy, was meant to meet the requirement of having equipment located in Italy for the purposes of giving rise to the applicability of Italian data protection law. Also the Court referred to the letter from the Article 29 Working Party to Google where the Working Party stated that “Google’s services are provided to European citizens and it maintains data processing activities in Europe, especially the processing of personal data that takes place at its European centre”.

Despite of such circumstance, the privacy related crimes for which Google managers had been convicted by the Court of First Instance were not applicable since the challenged lack of provision of the privacy policy to users was not punished by the Italian privacy code through criminal sanctions and because the uploader of the video rather than Google was the data controller of the data contained in the videos and therefore he was subject to the obligation of provision of the privacy policy.

Do you want more details on the above, feel free to contact me, Giulio Coraggio (giulio.coraggio@dlapiper.com).