Update 1 on the Google/Italian legal case

Hmm.  Following my post on the Google/Italy legal case last night, the plot this morning, thickens slightly - to an almost minestroni-like consistency in fact.  This is likely to be my first update of a few ....

A twitter search first thing revealed the first pro-ruling post I'd seen, from blogger Malcolm Coles (whose server currently appears to have ground to a halt under the barrage of hits).  He repeated the prosecution's claim that the video had been left up their for two months, "even though some Web users had already posted comments asking for it to be taken down" (quoting Reuters here).

So - the see-saw of judgement now starts to lean rather more towards the Italian side than it did last night, when I was reading that the video had been taken down when complaints were received. It still doesn't seem reasonable to expect a publishing platform to take responsibility for all content that appears on it, and the ruling seems unfairly harsh.  However, a crucial aspect to the case is whether Google were in fact guilty of not taking down the content quickly enough, and thus open to the charge of breach of privacy.

At the time of writing there are some aspects of the case which remain unclear (and please forgive the nitty-gritty dissection of comment vs. flag - but it really DOES make a difference in the moderation world).  The answers to these would make it much easier to come down firmly on one side or the other.

• Whether the video did in fact remain up an unnecessarily long period of time: it seems that Google says it took the content down within hours of it being reported, and helped the Italian police with investigations. The prosecution says the video was up for two months, even though users had posted objections. 
• Whether the objections were in the form of comments only or whether the ‘flag inappropriate content’ button was used.  Google have a large team which proactively scan YouTube for imappropriate content, but even had that been the case on 'Google Videos' back in 2006, of course there is no guarantee that either the video or comments about it would always be found.
• If the video had in fact been flagged, how long it was after receiving a flagged objection that the content was taken down - this surely is the crucial period of time, not how long the video was actually on site.
• Whether the video had indeed been promoted in the "funniest videos" category for two months as some commentary is claiming - and if so, whether this was a manual or an automated process.  If a manual process where Google eyes were on the content, this is of course unacceptable.

According to the ex-UK Information Commissioner's statement, the decision was not based on the Italian equivalent of the Data Protection Act, and so is likely to be based on local Italian laws that are unlikely to be reflected in other European states.  Most reports state that these are criminal proceedings - criminal law is the area where most countries tend to guard their own approach and is not harmonised across Europe.

It's a bold move by an Italian court, and unlikely I would imagine to be followed as a precedent in other Western jurisdictions.  But at the very least it calls into immediate and urgent question the operations of any social network/UGC global site accessible and/or operating in Italy and throws into sharp focus the issues that social networks (and also brands who have a presence on those networks) need to address in terms of protecting users.  Of course, we've got a white paper on that ...