LegalMatch: Intellectual Property

Google Criminal Convictions - Is Anyone Safe?

Common sense notions of what is right and wrong are an important aspect of the criminal law.  And whether you’re an ivory tower law professor or a workaday parent sitting on a jury, your sense of morality matters.  After all, each of us listened to the same bed-time stories as children.  

Well, maybe not in Italy.  Wednesday, an Italian court convicted Google executives on criminal charges regarding content that they didn’t post themselves. "Mommy, it wasn’t me" was always a line that worked for me, at least.

The charges were for violation of privacy laws and defamation resulting from a video that Italian students posted to Google’s now-discontinued video hosting service.  Executives obviously didn’t have time to approve every upload.  But just as in other areas, it seems that we as humans don’t feel as benevolent when it comes to extending protections to the rich and powerful.  Rather, we extend liability.  If you compiled a list of people that have gone to jail for something they didn’t do themselves, it would probably include more business CEO’s than street criminals.

This isn’t new, and although it unsettles the stomachs of some, white collar criminal liability remains one of the reasons American businesses consider in-house counsel so indispensable.  What is unique about this particular case is that it involves a foreign government prosecuting those who are not citizens of its sovereignty, effectively pulling them into prison using the jurisdictional hooks of cyberspace.  Executives have been held accountable not only for laws they didn’t know they were breaking, but laws that even a law degree from a local school wouldn’t have taught them.

And it’s not just the same court with a different flag.  In America, you can publish just about anything and the First Amendment comes in to protect you.  You can’t go to jail just because someone doesn’t like what you say.  Specific legislation also protects on-line publishers from content they are merely hosting.  Furthermore, the Italian indictments included damages resulting from the defamation of one of the people depicted in the video.  In the United States, this kind of claim is a civil matter.  Absent other laws, a suit of this kind can only be brought up by the injured party, not the attorney general.  It would certainly not result in a jail sentence.  This case went against both American constitutional heritage and our tradition of limited government. 

For likely these same reasons, American officials in this case declined to serve Google with process as requested by the Italians.  However, no one has challenged the Italian government’s right to call them into court.  The nature of the internet means that anyone who does business on it can be pulled into court wherever computers can be found.  This doesn’t mean a business should stay away, but it would do well to follow Google’s lead and come prepared.   

By: John Fullmer

   

A Look at DeFAMEation

Well...we are at the peak of baseball season, which recently got me thinking about the tremendous role some of these players, players girlfriends, managers, and teams play in the public.  Baseball is the American pastime, and people love to follow every second of every play-off game. 

Fans also love to follow the off-the-field gossip surrounding the sports figures they know and love (or love to hate).  We are a society consumed by the gossip surrounding public figures and the rise of social media has only fueled this interest. But when does gossip turn to defamation?

Former New York Mets manager Steve Phillips was recently involved in a sex scandal with an ESPN employee that helps to shed light on this distinction.  The real drama of the case has less to do with the actual scandal and more to do with what happened in the blogosphere after this liaison came to light.  Popular blog site Deadspin began a blogging campaign claiming that there was a lot more sex scandals at the ESPN office and also began naming names of top ESPN executives.  Now there is a pending suit between EPSN and Deadspin for defamation.   

          The simple definition of defamation is when false statements are made in writing or through spoken word.  When defamation involves public figures there is a heightened standard that requires a showing that the statements were made with malice or reckless disregard.  The increasing popularity of social media sites, blogs, and twitter further confuses the issue of what is private and what is public.  In a sense, anyone with any type of online presence is a public figure.  

One of the main criticisms of blogs is that they lack accountability.  Although anyone who writes something that is publicly published remains accountable to the law in general, there is still that lack of restraint that newspaper, magazine, and other mainstream media writers feel before any of their work is published. 

              As one blogger noted, “What this controversy between ESPN and Deadspin brings to the forefront is the challenge of blogging, and being blogged about, in the current era of jurisprudence.” This will be a very exciting case to follow and see how law adapts to the ever-changing media.  Even if you aren’t as excited about the legal implications of this as I am (nerd alert!) this is something that will continue to affect anyone using blogs, facebook, myspace, or other online mediums.