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Monday, 26 April 2010 10:51

Who has the deepest pockets: penalising the messenger


When we want retribution, modern society doesn't much care who is to blame; instead, we want to be sure the organisation with the most money is squarely in our sights.

I have read with interest the large number of civil and criminal actions recently where, rather than seek full and complete retribution from the perpetrators, the protagonist sees the messenger as having the most to lose, be it respect, money or even liberty.

The most recent incident comes to us from Brazil where an accusation of paedophilia against a priest in Minas Gerais state was made on Google's social networking site Orkut.  According to local reports, the poster referred to the priest (identified only as J.R.): "the paedophile ... the thief who has a lover."

Judge Alvimar de Avila of the appeals court said, "By making space available on virtual networking sites, in which users can post any type of message without any checks beforehand, with offensive and injurious content, and, in many cases, of unknown origin, (Google) assumes the risk of causing damage."

On that basis, Google was fined 15,000 Brazilian Reais (around $9,000 Australian dollars).  Thank goodness it didn't happen in the highly litigious United States.

There was no mention of any penalty levied against the actual author of the accusation; or even whether they were ever identified. 

As an aside, what if this was written on a slip of paper and pinned up on the noticeboard at a local supermarket?  Would the supermarket have been fined, or would common sense have prevailed?  I thought I knew the answer to that question; perhaps I don't any more.

A couple of months ago, iTWire reported a case in Italy where the courts chose to personally indict senior Google executives over the upload of a bullying video to Google Video by a schoolgirl from Turin.

Matt Sucherman, Google's VP and Deputy General Counsel - Europe, Middle East and Aftrica, said "In late 2006, students at a school in Turin, Italy filmed and then uploaded a video to Google Video that showed them bullying an autistic schoolmate. The video was totally reprehensible and we took it down within hours of being notified by the Italian police. We also worked with the local police to help identify the person responsible for uploading it and she was subsequently sentenced to 10 months community service by a court in Turin, as were several other classmates who were also involved.

"But in this instance, a public prosecutor in Milan decided to indict four Google employees '”David Drummond, Arvind Desikan, Peter Fleischer and George Reyes (who left the company in 2008). The charges brought against them were criminal defamation and a failure to comply with the Italian privacy code. To be clear, none of the four Googlers charged had anything to do with this video. They did not appear in it, film it, upload it or review it. None of them know the people involved or were even aware of the video's existence until after it was removed."

It would seem that the general thrust of both of these cases is to demand that the service provider (Google in both of these instances) would have to vet EVERY posting prior to it going live on the internet.

One wonders just how strongly Google is contemplating removing all presence in Italy and Brazil until the local authorities wake up to themselves.

Which brings me a little closer to home, and the attacks on another messenger.

We all read in great thrall the saga that was the iiNet trial.

Here again, there was a strong desire to make the messenger (in this case iiNet, but implicitly ALL ISPs) responsible for the actions of their subscribers.

From the beginning, iiNet said very publicly that they had no intention of doing AFACT's job for them.  If the copyright owners wanted to do battle with the copyright infringers, sobeit, but leave the ISPs out of it.

The courts agreed, delivering a comprehensive win to iiNet in just about every aspect of the case.  Of course AFACT appealed.

Many opined that this might open the gates for copyright infringement, but in reality, nothing had changed; the courts have simply ruled in favour of common sense - that the ISP should not have anything to do with any argument between copyright owner and infringer.

Of course copyright owners have a much larger slice of the Government's ear than do either ISPs or Internet users and so there are already moves to enshrine the liability of the messenger into legislation either on a national basis or even internationally under the highly secretive ACTA negotiations.

As I commenced this commentary with an observation that the messenger is an easy target, so I will also conclude the same way.

In all three cases, the courts (and implicitly the aggrieved parties) have seen fit to apply a great deal of the blame for unreasonable actions upon the owners of the channel that the actions were communicated upon.

One can argue that the Postal Service (for threatening letters, illegal contraband etc), the Telephone Companies (threatening calls, harassment, drug deals) and even the Electricity and Gas Providers (for powering a number of illegal activities) are just as liable as ISPs.

Until the authorities can make a clear distinction between the actions of ISPs and the actions of every other carriage service over which unlawful (or merely unreasonable) actions take place, then there is simply no justification for the pursuit of ISPs and other Internet services.

The Internet is NOT special; please don't treat it as if it is.


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David Heath

David Heath has had a long and varied career in the IT industry having worked as a Pre-sales Network Engineer (remember Novell NetWare?), General Manager of IT&T for the TV Shopping Network, as a Technical manager in the Biometrics industry, and as a Technical Trainer and Instructional Designer in the industrial control sector. In all aspects, security has been a driving focus. Throughout his career, David has sought to inform and educate people and has done that through his writings and in more formal educational environments.

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