Controlled Access to the Internet, Prevention of Illicit Uses and Fundamental Rights - A Criminal Law Experience in Light of the Italian "Google Case"

The sentence of an Italian criminal court against three top managers of Google received much attention in Italy and abroad. It may be considered a “leading case” on the debate over the criminal responsibility of Service Providers (abbr. SP) for the omission of the duty to monitor the use of the Internet for illicit scopes and to prevent the commission of computer related crimes. The sentence did not recognize the existence of such general duty but sentenced to jail the three managers for the infringement of Italian privacy law. According to Court opinion the three manager did not complain with the duty to acquire the consent of all the individuals before the treatment of their personal data. A duty extended by the Court´s decision to the case of the uploading, in GoogleVideo, of a defamatory video even if the treatment of personal data of the victim was made not by Google but by the uploader of the video. The Court bringing out the contents of privacy regulation created, at least, for the all SP, a de facto duty to prevent criminal conducts committed by others. This statement will be discussed underling that the active collaboration of SP with criminal law enforcement agencies is necessary for real security reasons but may be considered a lawful tool in the social control of computer related crime only if pressing limits of proportionality principle are satisfies.