Marc Rotenberg on Google's Italian Privacy Case
I don’t think this is really a case about ISP liability at all. 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 at issue in this case. It is also how the right of privacy was first established in the United States.
The video at the center of this case was very popular in Italy and drove lots of users to the Google Video site. This boosted advertising and support for other Google services. As a consequence, Google actually had an incentive not to respond to the many requests it received before it actually took down the video.
Back in the U.S., here is the relevant history: after Brandeis and Warren published their famous article on the right to privacy in 1890, state courts struggled with its application. In a New York state case in 1902, a court rejected the newly proposed right. In a second case, a Georgia state court in 1905 endorsed it.
What is striking is that both cases involved the use of a person’s image without their consent. In New York, it was a young girl, whose image was drawn and placed on an oatmeal box for advertising purposes. In Georgia, a man’s image was placed in a newspaper, without his consent, to sell insurance.
Also important is the fact that the New York judge who rejected the privacy claim, suggested that the state assembly could simple pass a law to create the right. The New York legislature did exactly that and in 1903 New York enacted the first privacy law in the United States to protect a person’s “name or likeness” for commercial use.
The whole thing is worth reading.
EDITED TO ADD (3/18): A rebuttal.