A mixture of concern and disbelief has greeted the news that three Google executives have been held criminally liable in an Italian Court, for footage uploaded to Google Video by a user, which breached the country's privacy laws. Although it seems highly unlikely that other jurisdictions will follow Italy's lead, this case nonetheless raises important questions over how best to balance the rights and responsibilities of hosts, posters and potential victims of user-generated content (UGC), writes Susan Snedden, an associate in the IP & technology team at law firm Maclay Murray & Spens.
European law regulating civil liability in this area, which forms the basis for UK law, is fairly pragmatic. Generally speaking, rather than being legally obliged to check all UGC before it is posted, hosts must remove concerning material as soon as they are notified of it, to avoid liability.
This seems a sensible approach. Requiring active policing by websites would effectively see them acting even more as judge and jury than is already the case in determining whether content infringes or not. They often do not have enough information to make this call, so this would inevitably make them risk-averse, and would possibly result in a big reduction in UGC.
Even the current regime is not perfect though, as it potentially threatens web users' freedom of speech and even their commercial interests. Hosts have no real 'grace period' in which to establish whether accusations of infringement are legitimate - they must act immediately on complaints and investigate later - leaving the system open to abuse or, at the very least, incorrect claims being acted upon.
But absolving hosts of all potential liability would also create a raft of new problems. There would be no incentive for hosts to remove infringing material quickly, which could make matters worse for those whose rights were being infringed. In addition, the injured party's only remedy would be to pursue the user who posted the content in the first place.
Such users are often either unaware of, or simply do not care about potential legal issues surrounding their UGC, such as copyright infringement or defamation. An individual user is unlikely to have the resources to compensate for any significant harm caused, even if that harm can be adequately assessed in financial terms. Under the current system, the option to take action against the original poster, as well as or instead of, the host, already exists.
The more philosophical question of who 'should' take responsibility for UCG is much harder to answer. Sites such as YouTube and eBay exist solely to facilitate the posting of UGC and make money. Since they are providing the opportunity to users and making a profit as a result, there is also an argument that they should shoulder some responsibility for the content. That said, given sheer volume of content posted to such sites, it would be a herculean task for them to review all material before posting it - and even if they did so, they might still not be able to identify infringing content.
With so many competing and legitimate interests at play, our treatment of UGC must inevitably be a compromise, balancing freedom of expression and the amount of policing websites can be reasonably expected to do as against the interests of those who might be harmed. While legal systems across the world continue to grapple with this challenge, there is at least broad consensus that the Italian Google judgment skews the balance massively against website hosts and does not represent a solution.