Should I be allowed to smear you?
That's the question journalists ought to be asking in the wake of an Italian court decision that found Google criminally responsible for content uploaded to one of its sites. (The case revolved around the video of an autistic boy getting beaten up in Turin. The father sued, successfully arguing that his son's privacy had been violated. Three Google executives were handed six-month suspended sentences in absentia.)
Instead, the story has been framed as an attack on freedom of speech.
"The Web as we know it will cease to exist" if the ruling stands, claim Google's lawyers.
"It absolutely is a threat," affirms Danny O'Brien of the Electronic Frontier Foundation. "If intermediaries like Google or the person who hosts your website can be thrown in jail in any country for the acts of other people and suddenly have a legal obligation to pre-screen everything anyone says on their website before putting it online, the tools for free speech that everyone uses on the Net would grind to a halt."
Even the State Department has issued public statements supporting Google.
The more I think about it, however, the more I think it's time to civilize "the Web as we know it."
Let's return to the question I asked at the beginning of this column: Should I be able to libel you as, say, a drug-addicted child pornographer?
This column appears in print newspapers. If I were to write that you were (for example) a drug-addicted child pornographer, my editors would ask me if it was true and demand that I source my allegation. Worried about getting sued, they'd either redact the relevant section or refuse to run the piece entirely if I couldn't answer them satisfactorily.
And editors should be worried—publications are legally liable for what they print.
On the other hand, there are no gatekeepers online. Because there are pesky editors worried about getting sued online, I can post that atrocious lie about you being a drugged-out kiddie porn entrepreneur to my blog and to my Facebook page in a matter of seconds. I can sum it up on Twitter. Within a few hours, thousands of people will have read it. They might forward it to tens of thousands of their friends—two of whom might be your spouse and your boss. And there's nothing you can do about it.
Of course, you could sue me. But because I'm not rich, there's no big paycheck down the road. You'll have a hard time finding a lawyer.
Not in Italy, though. Lawyers, juries and judges would look at my blog, which is hosted by Blogger, which owned by Google. They'd ask: what difference does it make whether Ted Rall's column ran on Blogger or appeared in The New York Times? Answer: there is no difference. Without a medium—printed or online—the libel wouldn't have occurred.
In Italy, these Internet companies would have to dig deep into their very-deep pockets and pay you for the harm done to your reputation if the column ran.
Google and other self-styled "intermediary" online companies argue that they shouldn't be held responsible for material hosted and posted on their services because they don't have editors and aren't selecting the content. "They didn't upload it, they didn't film it, they didn't review it and yet they have been found guilty," said Google's senior communications manager, Bill Echikson, of the three execs.
This reasoning is common in the online world. Several years ago I learned that
NYTimes.com didn't have editors—it had programmers. It was astonishing. Syndicated and wire-service content was uploaded directly to the site without anyone at the Old Gray Lady's online version bothering to even take a look-see and make sure things were spelled correctly, much less check to be sure it's accurate or, say, non-libelous. Among this unedited content were my cartoons. Naturally, one or two a year—out of 150—were controversial. If they'd had an editor, they probably wouldn't have run those particular pieces. But editors cost dollars, and newspapers are pinching pennies. Ultimately the paper canceled all of my cartoons. It was easier and cheaper than hiring an editor.
I suspect that courts, and not just in Italy, will see Google's "free speech" argument—"We don't review content! We let anyone post anything they want whenever they want!"—as less of a defense than an admission of culpability. After all, Google chooses not to review content, at least in part to reduce their costs.
It might be different if Google and other Internet aggregators weren't for-profit enterprises. It also might be different if they were what they say they are: service providers. You can't sue a service provider for the nature of the content it carries. The phone company merely provides a platform; it can't be sued if someone uses their lines to slander you.
From a legal standpoint Google is an old-fashioned content provider, relying on a business model that is no different from The New York Times. They post content—much of it stolen—in order to generate ad revenue.
Of course, Google is a little edgier than The Times. A late 2009 study by the Fair Syndication Consortium found that the company was responsible for 53 percent of the overall piracy of copyrighted newspaper articles online. Google illegally scanned millions of books without asking the authors' permissions. And the ad money rolled in—$1.97 billion in profits during Q4 of 2009 alone.
It's not like Google can't afford to hire an editorial staff. Shouldn't they have to make sure that, for example, I don't libel you as some crazy porn gangster?
(Ted Rall is the author, with Pablo G. Callejo, of the graphic memoir "The Year of Loving Dangerously.")
