The case is now known.

Google has been recognized by the Court of Milan responsible  by virtue of the potential harm of honor and reputation as a businessman who was pulled in automatically search the words “scam” and “fraud”.

But what are the similarities and differences between the Yahoo case of Rome, which held bank a few days ago, and tips on what Google’s automatic in the case of Milan?

There are some similarities and many differences.

The similarity is more explicit condemnation in the supervision of a civilian search engine, did not quite usual.

But more important I think the differences are.

First, the conduct and violated the rules: if it was yahoo violation of copyright and responsibility for “linking” of the search engine, whereas in “Google” Milan is the honor and reputation damage using the system for automatic suggestion, in fact potentially criminal.

Yet while it appears unjustifiable in my opinion in an “uncritical” the application to the search engine rules on caching provider, does not appear feasible as a liability in the case of links pointing to a general breach of copyright made by all links “unofficial” because this would have an impact “devastating” freedom of information online and on the free circulation of content, unlike the case in which Google, even if using an automatic algorithm, directly involving the meaning of a crime to a specific person by determining the actual “death” of that digital subject without that liability is established in court.

Everything just “hearsay”, which in this case would be represented by the negative comments of users on the network.

Now the person in question could be a “mafia” or a “loan shark” but also a person who is hated by someone else for reasons of personal animosity and that someone may have “flooded” the network of negative comments about that person without the facts have been tested and it has not been able to defend himself the same man.

Here, Google does not just refer to a link that infringes the copyright, which would shelter from the vicarious liability, but would directly responsible, although with automated software, the attribution of specific facts to a person determined, among other things, risking being accused of slander.

In the case of Milan, inter alia, contrary to what many commentators have written that it was slander since it is attributed to the gentleman in question criminal acts and not a simple defamation.

In that case I do not think we should or we can talk about the responsibility of Google as caching or hosting provider but, rather, a direct responsibility as the subject suggests that the search string, not to “disturb” dangerously (for the future of Google, and all of us) the concept of liability of intermediaries.

The cases Yahoo and Google have also from this point of view of a possible common denominator.

The reasons for which, however, the judges begin to feel responsible for the search engines probably lies in the fact that the same engines (unwittingly or an incorrect calculation) is unfortunately indirectly because of this drift “authoritarian” by virtue of the defenses made by the same or in advance in the conditions of use of services, or in the same judgments.

As for example when Google does get into the issues that are presented in Italy, for protection of their subsidiaries and to prove that Google respects the same rules in force in the United States under the Digital Millennium Copyright Act, the mechanism of the notice and take down, however, is placed in the uncomfortable position of one who forced the judges to believe that some form of selection and cancellation may be done.

This prompts the judges to recognize that also exists in our system the warning mechanism and content’s cancellation  typical of the DMCA’s “notice and take down” that in fact in the european context doesn’t exist.

This “calculation” on the contrary will push more and more italian  judges to recognize a liability for Google and other search engines.

And this is confirmed by both the Yahoo case of Rome by the case of Milan, where a substantial part has been carried out by the conviction of the judge, is clearly from what has been said in court that Google (or Yahoo in the case of Rome) could then delete the contents, and as is apparent from what he said (according to the judge) Microsoft owner of the search engine Bing

Rather than sentences (better than orders) so I think we can talk about history in these cases an error in the evaluation of search engines as situated in relation to multiplication of proceedings against them

Fulvio Sarzana
Studio Legale Roma Sarzana & Associati

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