In  his personal blog, Peter Fleischer contends that the European Union’s Electronic Commerce Directive, enacted in 2000, sets a clear legal framework for establishing liability for unlawful content on the Internet, and should not allow criminal prosecution of Google executives.

He argues:

If Google and companies like it were responsible for every piece of content on the web, the Internet as we know it today – and all of the economic and social benefits it provides – would disappear. Without appropriate protections, no company would be immune: any potentially defamatory text, inappropriate image, bullying message or violent video would have the power to shut down the platform that had unknowingly hosted it. In the offline world, it would be likecriminally prosecuting post office employees because someone mailed an inappropriate letter. European law recognizes the importance of providing limitations on the liability of hosting platforms.

. . .

From a public policy perspective, it wouldn’t make any sense if it didn’t apply to criminal charges. The objective of the directive was to foster a competitive and dynamic knowledge-based economy in the EU. To provide an environment in which its citizens would have access to inexpensive, world-class communications infrastructure and a wide range of services. To create conditions for e-commerce and the internet to flourish. To enhance quality of life, to stimulate innovation and job creation, and to contribute to the free flow of information and freedom of expression. Those are words directly from the Commission. It wouldn’t make any sense to apply these protections only to civil matters; doing so would permit criminal claims to eviscerate the very benefits the directive sought to achieve.

In the abstract, the argument has merit.  There are always gray areas especially when it comes to immunity from criminal prosecutions.  The EU Directive should be generally applicable in both civil and criminal settings, however, guidelines should be written into the Directive for when criminal activity is not just being hosted, but when the platform is complicit in the activity by virtue of its activity, or lack of enforcement of internal standards.

What do you think?

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