Italy: The Court of Milan Google Decision A Preliminary Legal Analysis

Last Updated: 2 March 2010
Article by Laura Liguori and Ernesto Apa

As widely reported, the court of Milan has recently convicted three officers of Google in connection with a video, uploaded on Google video, of a boy affected by the Down syndrome being bullied by his classmates.

The decision has been widely criticized as a threat to the freedom of speech on internet, etc. As we explain below, we believe that such widespread criticism may be excessive, at least based on the information available today.

There are several clues which show that the decision has, at least to some extent, upheld the "notice and take down" principle (that is, the rule which is applied in the context of the internet, which exempts a "provider" from liability if the provider removes offensive content upon receipt of a notice to this effect).

In this brief analysis we attempt, unlike most others, to analyze the decision based on the scope and nature of the conviction and the factual circumstances of the case. As the text of the decision it not available yet (and will not be for some time), our analysis is based solely on information available on newspapers and the web.

  • The Convictions: on February 24, the Judge of the fourth criminal section of the Court of Milan Mr. Oscar Magi (Court of first instance) convicted three Google executives for the violation of the Data Protection Italian provisions. The judge convicted to six month imprisonment David Carl Drummond (former chairman of Google Italy, now senior vice president), Peter Fleischer (Google, Inc.'s privacy counsel for Europe) and George De Los Reyes (a former director of Google, now retired);
  • Acquittal for Defamation: in addition to violation of Data Protection provisions, the defendants were charged also for defamation. All three defendants, together with Google's head of video for Europe, Arvind Desikan (who faced only the charge of defamation), have been acquitted of defamation. This is important because, as we will, see the acquittal on the charge of defamation sheds some light on the legal reasoning followed by the judge;
  • Criminal Jurisdiction: in terms of jurisdiction, the court probably applied the so-called "ubiquity rule": a crime is punishable in Italy if any portion of the criminal behaviour or its effects take place in Italy (as the bullied boy lives in Italy, it was easy to assert jurisdiction based on this theory). This may in itself be very important as it confirms that jurisdiction defences based on where the servers are located, or where the defendant is resident, etc. should not carry the day in the context of breach of mandatory provisions (such as those relating to data protection). It remains to be seen, on the matter of jurisdiction, whether the reasoning which seems to be applied by the judge conflicts to any extent with the Italian Data protection rule which states that processing of data is subject to Italian law if either (i) the controller is established in Italy or (ii) the controller is established outside EU but it uses equipment located in Italy for purposes of processing personal data;
  • Unlawful Processing of Sensitive Data: this crime is set forth in Section 167, paragraph 2, of the Italian "Data Protection Code" (Legislative Decree no.196/2003). This crime provides for imprisonment between one and three years. Sensitive data is, among other things, data relating to health (such as the boy's Down syndrome). This is the crime which the judge seems to have applied;
  • Posting and Availability of the Video: the video of the disabled boy being harassed was filmed in May 2006 and was then uploaded on Google Video on September 8, 2006. It stayed on Google Video until removal on November 7. The video then (a) was available for a relatively long time and (b) featured prominently in some way;
  • Actual Notice or ... "Constructive" Notice: in our opinion, the judge may have held (given the long and apparently prominent availability of the video) that Google's officers could and should have noticed the offensive video by themselves; in other words, the judge may be of the opinion that, in addition to an actual notice from third parties, a "notice" may also exist "constructively", so to speak. For example, the judge may be of the opinion that it was unlikely that the officers did not see the video (as apparently it was prominently featured for at least some time). Put it another way, the court possibly would not have found Google's officers guilty if the video had stayed online for a short time or was not prominently featured;
  • General Duty to Monitor Content? If the above is correct, then the decision does not seem to establish a general duty to monitor content (which would be consistent with the "notice and take down" rule). On the contrary, the decision could theoretically be deemed consistent with such rule, if the rule is interpreted to apply not only to an actual notice but also to "noticeability", so to speak, whatever its source (including the featuring of a video prominently as a result of automatic ranking, cataloguing, tagging of videos carried out by the Google algorithms). In addition, if the court had deemed applicable a general duty to monitor posted content (equating in some way Google's liability to that of an editor) it probably would have convicted the defendants also for defamation;
  • Ranking Algorithms: as to the ranking algorithms, the court does not seem to have held that they are equivalent to manual cataloguing, a theory which indeed some have suggested and which (if upheld) would have been totally inconsistent with the notice and take down rule (and would have had a much more negative impact on Google);
  • Notice and Take Down Still Applies: if the decision applies the "notice and take-down rule" (albeit in a "noticeability" version), then it means that the court believes that this principle may indeed apply to Google; this, as is known, is a conclusion which many have challenged (as, they argue, it is not entirely sure that Google falls within the exceptions of the e-commerce directive: mere conduit, caching, etc.);

In conclusion, while Google understandably is totally unhappy about the decision (and needs to press this point very strongly), it may actually be that the decision is, if not positive, at least not as negative as it could have easily been. Google, in fact, may be deemed to have scored a couple of points: (a) Google's algorithms are not equivalent to a manual cataloguing and tagging; (b) Google may benefit from the notice and take down rules, and is not subject therefore to a general duty to monitor.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions