The decision n. 54946/2016 released by the Italian Supreme Court – Vth Branch that held a blogger liable for defamation for a libeling post on his website is gaining momentum in Italy as a case law affirming the automatic liability of a blogger for the behaviour of the people who posts comments. But this is a wrong account of the story.
The merit of the issue is a comment where somebody called the chair of the Italian Soccer Pro League a certified criminal and a crook, and sent the blogger the criminal record of the chairman. While the defendant claimed of not knowing about the comment until the police knocked at his door, the court found that the email containing the criminal record was
enough to have actual knowledge of the existence comment itself.
This decision has been wrongly reported as a shift toward the intermediary liability for omitted control of a platform’s contents.
The decision grounded the indictment on the basis that the defendant actually – actually, I repeat – knew about the existence of the defamatory content and didn’t remove it. Thus – it can be summarized – he either directly contributed to the defamation or indirectly allowed the post to exploit its effect.
While, thus, this decision doesn’t impose a duty of preemptive monitoring, it broadens the notion of “actual knowledge”.
To what extent it will be assessed in the near future.
According to Laura Boldrini (left wing), President of the Italian Low Chamber, Google and Facebook are ethically liable for what the users do online. Talking about the (venerable) online hoaxes phenomenon, she verbatim stated:
They are not telcos, they have an ethical and social liability. While obviously it isn’t only their fault if hoaxes are spreading. 1
This is not the first time that Boldrini tries to extend the liability of the users to ISP, Telcos and Over the top operators and this last statement lead to think that there should be an actual agenda on this topic.
But the concept of “moral/ethic liability” is both religious and individual, and in a democratic country where the rule of Law is supreme, is not supposed to be taken into account. On the contrary, following a precise script, this is what we face every time that the Internet is involved: public outcry first, ethical issue next and, finally, an “ethical” regulation.
In the specific case, Boldrini’s position is wrong from whatever the side you look at it.
It is ethically dangerous because weakens the legal principle of the individual’s personal liability, thus reinforcing users’ idea that online there is no accountability.
It is legally unfeasible, because the e-commerce directive made crystal clear that ISPs cannot be forced to monitor and verify each single act of a user, and the data protection directive says, again, crystal clear, that the data protection regulation doesn’t apply to individual’s data processing (in other word: the law doesn’t work for a Facebook’s post made by a user.)
It is market’s sinking. Italy has already proven to be unable to join the digital economy race, and this regulatory approach from Boldrini is another dead weight to the Italian Telco industry.
- Non sono compagnie telefoniche, hanno una responsabilità morale e sociale. Anche se ovviamente non è soltanto colpa loro se si diffondono le bufale. ↩
A lot of people – politicians, “gurus” and “activists” use the word “Big Brother” and “Orwellian” without having read even the cover of a George Orwell’s book.
They rather want to have a look at this TED-ed short lesson, to discover what they’re actually talking about.
According to NBC, Apple has been ordered by a federal judge to support the FBI in decrypting the Iphone used by the people accused of having slaughtered 14 people in San Bernardino, California, last December, 2, 2015. The court order has been necessary since Apple refused to voluntarily provide such support.
These are the bare facts, that have been turned into a horse of different colours by bad-faith anti and pro encryption activist. The former sang the usual song “Strong Encryption Smooths Criminals”(FBI Records), while the latter waged the old flag “Weak Encryption Affects Civil Rights”.
The federal court neither asked for a backdoor nor for the enforcement of a weaker Iphone security, but just said Apple to support the after-crime investigation. This court order doesn’t hampers people’s legal right to strong encryption, because the justice said something like “you have the right to own a strong safe, but the State has the right to try to open it whatever the mean in case of a criminal investigation”. In this context, then, the fact that Apple has been ordered to provide support to the FBI is not constitutionally illegal.
I still support strong encryption for the masses (and for companies too), but I don’t think that making a case out of this court order might help the civil right cause. It only works as as a (maybe unintended) advertising stunt for Apple that can portray itself as a “privacy shield”.
Napoleoni claims that – as the Marxist ideology did in the past with the “word-of-mouth” or, better, “word-of-book” – ISIS’s propaganda gets its power from a new “ideology-spreading-tool”: the Internet, and thank to the Internet will last, no matter what:
Even though, hypothetically, we should succeed in taking out all of ISIS’s warriors by bombing them and killing al Baghdadi, the ideology that these people have created and their universal message will last on the Internet. 1
I don’t have enough authority to challenge the curious association Napoleoni did between Karl Marx philosophy and ISIS’s vision of the Islamic religion, but I find grossly superficial and offensive for the victims of (every) war to compare “the Web” to a nuclear bomb.
As I wrote in a post, war is made of bullets, and bullets hurt as do (nuclear) bombs. Bombs make carnage, slaughters, shred a human being in pieces, burn, annihilate, vaporize, wipe communities, blindly kill innocents, pollute lands for centuries or millennia (ask Hiroshima and Nagasaki survivors for additional info, just in case.) E-mail, newsgroups, chats, FTP (yes, Napoleoni, the Internet is not only made by HTTP) are tool of freedom designed by free people to give humans a free chance to communicate with no physical and social barrier.
Those like Napoleoni – and her cultural associates, member of the “Internet-as-a-threat Club” – should simply accept the fact that ideas are countered (and sometimes, fought) with ideas and that the worst way to challenge a disturbing statement is to censor it.
The idea that a sole statement might change somebody’s personal philosophy up to turning him into a human bomb carrier is simply wrong. Change of mind happens by way of tragedies, loneliness, apartheid and injustice and not because of a tweet.
As per the “Internet Patrolling” advocated (not only) by Napoleoni – though sadly labelled by her as ineffective – again, let’s go back to basics: as the East Germany, Russian and Italian political police history show, to fight an enemy and prevent attacks there is no substitute for an actual, massive, ruthless and pervasive physical control. But t this is disturbing and, rightly so, nobody in the Western world is available to give a government so much power.
And here comes the brilliant solution: let’s fall back on the Internet and blame “the Web” as a radicalization tool.
No, Napoleoni, ideologies will not last because of a blog. They will stand until there will be inequality in world, it means until the end of time.
- Orginal text in Italian: Anche se, ipoteticamente, riuscissimo a stanare con le bombe tutti i guerrieri dello Stato Islamico e a far fuori al Baghdadi, l’ideologia che costoro hanno creato ed il loro messaggio universale in rete rimarrà ↩
Italian politcians’ mantra, starting from the Chair of the Low Chamber, Boldrini and down to local parties’ minions is “The Internet is an opportunity but…” and then a stream flows of statement like “we need to regulate it”, “we need to keep it free for the righteous citizen”, “we must block hate speeches” and so on.
Yesbutters don’t just kill ideas.
They kill companies, even entire industries.
The yesbutters have all the answers.
Yesbut we’re different. Yesbut we can’t afford it.
Yesbut our business doesn’t need it.
Yesbut we couldn’t sell it to our workforce.
Yesbut we can’t explain it to our shareholders.
Yesbut let’s wait and see.
All the answers. All the wrong answers.
For the positive part, dedicated to the Whynotters, just follow this link.
The collapse of the US-EU Safe Harbor: Solving the new privacy Rubik’s Cube is a post on the official Microsoft’s blog that is gaining momentum since it is possibly the first “cooled down” analysis of the EUCJ decision on Safe Harbour. Though well articulated, nevertheless, I think that the “hook” where the chain of reasoning hangs is weak.
I don’t think we should go for “global laws” because of the technological evolution.
“Global laws” means “Single Government” or, in other words, the end of democracy.
From a legal standpoint, the technological evolution is irrelevant because technology only affects the way things are done and not the right to do it.
You don’t need to amend the provision that punishes killing or manslaughtering everytime that somebody figure out some “creative” mode to put a R.I.P. stone over somebody else head. Or, dealing with the technological “evolution”, you don’t need a new provision to sanction hate speeches, personal life intrusions, libel and defamation, stalking and so on “just” because of the Internet. The illegal behaviours were already there before the computer era.
Furthermore, we all know that law is rather Lobbyists’s pressures, political mediation, economic and financial differences driven, than God-inspired.
Guess who would going to write this “Global Regulation”?
The Right to be forgotten – not a “right” per se, by the way – is a distorted way to enforce the right to privacy and an actual form of censorship because strips from the Court’s hands the power to decide what should be known and what shouldn’t and, further more, is a way to enforce a bottoms-up censorship that a State can easily turn into a top-down dissent shutting.
The Right to be forgotten is the wrong answer to a (maybe) real question: how do you get rid of your embarrassing past if I’ve changed course of life?
Answer: instead of trying to hide the dust under the carpet by removing the search engines’ indexes, just use it at your advantage: run a blog, a social network page or whatever elicit the interest of the search engines’ robots and tell your story. This way you can counterbalance the (allegedly) negative effect of a news relating to you because a search engine will reveal your side of the story too.
This, of course, if you are sincere in your life-changing effort because, if you’re not, you might find yourself exposed again to the consequences of your con stunt.
Is the solution to the Right to be forgotten actually as simple as that?
No, because to do so you should be able to properly handle an argument, collect and provide evidences and effectively deliver your statement. And since Cicero’s adepts aren’t that much, it is better to go for the censorship solution: cheaper, faster and good for the powers-that-be.
Although the cipher, in this case, is not that hard to handle for an expert codebreaker it shows that “old school” systems still work.
So, following the announced ban of side-to-side encryption application made by US Presidente Obama and UK Prime Minister Cameron (coupled with the statement by Italian Home Affair Ministry) I wonder how they’re going to fight this “new”, dangerous way to exploit the encryption.
Maybe outlawing paper and pencil?