Freedom of Expression Vs. Right of Privacy.

Last week, the rage on the internet seems to have been about the Google case in Italy where a judge found four Google Execs guilty of violation of Italian privacy law by allowing users to post a video on one of its services. The ruling has been seen by many as an attack on freedom, which it might be.

The Wall Street Journal called it “madness,” and suggested it was “crazy, even for Italy,” while the Inquirer called it “a blow against common sense and Internet freedom.” Danny O’Brien of the Electronic Frontier Foundation called it “a threat to the Internet,” and the National Post said it suggested that “Fascism is alive and well.” (Gigaom)

It seems rather harsh to call today's Italy fascist and certainly ridiculous to compare it to China. In Italian court what was at stake was the right of privacy not censorship:

The case revolves around a video uploaded to Google Video in 2006 showing an autistic boy in Turin being pummeled and insulted by teenage bullies at school. It drew 5,500 views in the two months before Google Italy pulled it down two hours after being notified by police. The boy's father and an advocacy group for people with Down syndrome complained the video violated privacy protection laws.

Prosecutor Alfredo Robledo told the Associated Press the verdict upheld privacy principles and put the rights of individuals ahead of those of businesses. He said the case will force Google and other firms to be held accountable for screening videos hosted on their sites. (The Salt Lake Tribune)

Of course, Google will appeal and its chance to win are good since a European Union directive gives service providers safe harbor from liability for content they host. From a practical standpoint, it seems very difficult to hold online service providers responsible for all contents as long as they agree to remove content when there is a complaint - which was done in this case. The same can be said of regular media online with regard to the comments of their readers.

Adam Liptak of the NYTimes saw what is really interesting about this case - the deep divide between Europe and the U.S. over the balance of freedom of expression and the right to privacy. In Europe, privacy comes first, even if it measn huge economic losses and in the US, freedom of expression and business come first.

Article 8 of the European Convention on Human Rights says, “Everyone has the right to respect for his private and family life, his home and his correspondence.” The First Amendment’s distant cousin comes later, in Article 10.

Americans like privacy, too, but they think about it in a different way, as an aspect of liberty and a protection against government overreaching, particularly into the home. Continental privacy protections, by contrast, focus on protecting people from having their lives exposed to public view, especially in the mass media.(NYTimes)

Here again, the differences of emphasis come from historical experience :

The title of a Yale Law Journal article by James Q. Whitman captured the tension: “The Two Western Cultures of Privacy: Dignity Versus Liberty.” And historical experience helps explain the differing priorities.

“The privacy protections we see reflected in modern European law are a response to the Gestapo and the Stasi,” Professor Cate said, referring to the reviled Nazi and East German secret police — totalitarian regimes that used informers, surveillance and blackmail to maintain their power, creating a web of anxiety and betrayal that permeated those societies. “We haven’t really lived through that in the United States,” he said.

American experience has been entirely different, said Lee Levine, a Washington lawyer who has taught media law in America and France. “So much of the revolution that created our legal system was a reaction to excesses of government in areas of press and speech,” he said.

And indeed, France is probably the European country with the strictest laws for the protection of privacy, compared to the U.K. or even Italy - a country that invented 'paparazzi'. I have always found this one of the most important gap between the U.S. and France.

The question of privacy appears even more clearly in the recent European Google street-view case.