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Marc Rotenberg: Brandeis in Italy: The Privacy Issues in the Google Video Case

Mr. Rotenberg actually gets a lot of points wrong. No, actually, all of them.

I don't think this is really a case about ISP liability at all: it's even worse, it's about personal liability of the directors of a service provider.

It is a case about the use of a person's image, without their consent, that generates commercial value for someone else. That is the essence of the Italian law: no, this is wrong. The use of a person image without their consent is the core of the law. In particular if such an image betrays an health condition, as this was the case. The generation of commercial value is absolutely meaningless for the Italian personal data protection code. Funny that the op-ed writer posts a link to it without actually quoting from it. Also, the author spectacularly misses the point, which in this case was whether or not a service such as Google Video needs to obtain the consent, or if it can rely on the poster to do so.

The video at the center of this case was very popular in Italy and drove lots of users to the Google Video site: once again, not true: the video was seen just several thousand times.

This boosted advertising and support for other Google services: not true. Google Video, at that time, did not host advertising, nor generated revenue.

Google actually had an incentive not to respond to the many requests it received before it actually took down the video: not true. It was actually demonstrated in the case that Google took down the video hours after receiving the first complaint. The video stayed online for some time because no one complained earlier.

So the whole point of the article is moot, wrong and has nothing to do with reality. Studying the court documents (as opposed to just reading the prosecutor's opinion, which is obviously quite partial, and rightfully so) would help op-ed writers write the truth, as opposed to their own (or someone else's) opinion.

For fairness, I must caution that I was Google's expert witness on the case, so my point of view may be arguably biased; on the other hand, my knowledge of the facts of the case is likely a bit better than most :-)

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