Privacy Law and Criminal Law

Whoever still believes that privacy laws are touchy-feely should read about this case.

Four Google executives are on trial in Italy: they are accused of having allowed a video of a teenager being bullied by students in front of others students to be shown on Google Video.

The video, taken using a cell phone, was later posted on Google video. It was taken down less than 24 hours after the family of the victim made the request, two months after the video was put online.

It is probably the first case where a privacy executive is tried in a criminal court for his company’s actions. The charges are defamation and failure to exercice control over personal data. The accused are facing up to three years in jail…

Once again, the question of the responsability of content-hosting sites arises. A Google spokeswoman wrote earlier this year that "Seeking to hold neutral platforms liable for content posted on them is a direct attack on a free, open Internet."

Last week, Jeremy Doig, an American engineer, testified that Google video is controlled from the United States, raising thus the question of court jurisdiction. Which state should have jurisdiction over the case? The U.S. because Google Video servers are in the United States? Italy because, following the « effects test » set by the SCOTUS in Calder v. Jones, 465 U.S. 783 (1984): when a party causes result to occur in another state, may that party be subject to the laws and jurisdiction of that state? The Calder test has been applied by an American court in a defamation case.

Do we need an Internet ius gentium ?

Are Gossips Newsworthy?

The New York Times has an article today about an Irish bill that would protect the privacy of VIP (and B-list celebrities as well).

According to the article 3(2) (c) of the bill, using the name, likeness or voice of the individual, without consent, for purpose of advertising or sales prmotion, constitutes a tort of violation of privacy. This article is very similar to New York State privacy law.

The bill has a newsgathering defence (article 5(1)(e) : the defendant can prove that he was gatehring new in good faith, "for the purpose of discussing a subject of public imnportance, for the public benefit". The newsgathering must also be "fair and reasonable in all of the circumstances."

Are gossips newsworthy? The article 10-1 of the European Convention on Human Rights recognizes that the public has the right to be informed: " “Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”

The French Supreme Court has cited article 10-1 when holding that the droit à l’image is not an absolute right and has exceptions. However, this exception is not absolute. The Cour de cassation uses a test to check whether the exception of article 10 may apply: the person whose image has been taken must have participated directly to the news event, that is, she must have been intimately implicated in that event. … (Cour de Cassation, First Civil Chamber, July 5th, 2005, Bulletin, 04-10607)

The New York Times article mentions the recent European Court of Human Rights case, Von Hannover v. Germany, June 24, 20004. [2004] ECHR 59320/00 . The Strasbourg court held that publishing pictures of a famous princess in various magazines did not satisfy public interest. According to the Court, the “decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest.” In that case, there weren’t any.