Reports of the recent decision by an Italian court to issue suspended sentences against three Google exes for posting a video of a young person with downs syndrome being taunted has sparked a flurry of First Amendment concern. The opinion of reporters, at least in the U.S., has been nearly unanimous — “What were they thinking??” “This will kill the Internet.” “The Italians just don’t get it.”
There is no published opinion yet, so this is very much a first impression based on a quick review of the law in the case, but I was struck by the similarity of the Italian decision with the birth of the right of privacy in the United States.
I don’t think this is really a case about ISP liability at all. It is a case about the use of a person’s image, without their consent, that generates commercial value for someone else. That is the essence of the Italian law at issue in this case. It is also how the right of privacy was first established in the United States.
The video at the centre of this case was very popular in Italy and drove lots of users to the Google Video site. This boosted advertising and support for other Google services. As a consequence Google actually had an incentive not to respond to the many requests it received before it actually took down the video.
Back in the U.S., here is the relevant history: after Brandeis and Warren published their famous article on the right to privacy in 1890, state courts struggled with its application. In a New York state case in 1902, a court rejected the newly proposed right. In a second case, a Georgia state court in 1905 endorsed it.
What is striking is that both cases involved the use of a person’s image without their consent. In New York, it was a young girl, whose image was drawn and placed on an oatmeal box for advertising purposes. In Georgia, a man’s image was placed in a newspaper, without his consent, to sell insurance.
Also important is the fact that the New York judge who rejected the privacy claim, suggested that the state assembly could simple pass a law to create the right. The New York legislature did exactly that and in 1903 New York enacted the first privacy law in the United States to protect a person’s “name or likeness” for commercial use.
In other words, by 1905, it was well established in the U.S., whether by court decision or state statute, that individuals did have a right to control the use of their images when it was taken by others for commercial benefit.
To be sure, the claim, which has come to be known as “the tort of appropriation” has some limits and in the online world, people’s images are used in subtle ways all the time, without consent, for commercial advantage. But even with the Internet, the theory has still been applied, as Facebook found out when it tried to use its customers’ images for advertising purposes as part of the Beacon program. (And to Facebook’s credit, the photo “untag” feature is a clever way to give users control over their images online and reduce some of these concerns.)
The Italian case did not involve an “endorsement,” but it was a similar way to generate interest in a Google service. And importantly, this was not a politician or other public person who was being mocked, but a private person ridiculed for something over which he could not control. For Brandeis, that was the core of the privacy right.
It is significant also in the Italian case that defamation charges against the Google execs were dropped. That was an appropriate recognition of the freedom of expression interests in the case and tracks the distinction between the Google execs being responsible for the content of the speech (they were not) and the Google execs deriving commercial value from the continued display of the video (they did). That distinction, which has been missed by virtually every commentator on this case, makes clear that the Italian court had a good understanding of the freedom of expression concerns. He just didn’t believe that absolved Google of all liability.
In the U.S. there has been an avalanche of news reports about the end of Internet Freedom and how privacy laws could destroy the First Amendment. Much of this coming, by the way, from groups and commentators who receive funding and other forms of support from Google.
But a more careful examination of the case as well as the development of privacy law in the U.S. reveals that, in many respects, the outcome was hardly a surprise. As the Italian prosecutor explained, “A company’s rights cannot prevail over a person’s dignity.” That belief is reflected in both section 167 of the Italian Data Protection Code and sections 50 and 51 of the New York State Civil Rights law.
In fact, for Louis Brandeis, the originator of the right to privacy but also one of the most influential justices in support of a robust First Amendment, the decision of the Italian court was probably the right outcome.
Written by Marc Rotenburg.