Everyone has to agree that the use of tube sites to upload videos that promote or depict illegality is something that has to be stamped on hard. Whether it’s copyright theft, bullying or violence uploading videos that are known to infringe laws accepted the world over is just plain wrong.

There is of course a responsibility on the part of a site’s operators and hosts to take reasonable measures to moderate and remove unsuitable content however the ruling handed down in Milan today is seen even by critics of Google as overstepping the mark.

Three individuals, David Drummond, Peter Fleischer and George Reyes were found guilty of failing to comply with Italy’s Privacy Code by not obtaining the permission of the subject of a video for it to be shown.

The reasons for their failure to do so is obvious to most people. Millions of videos are uploaded to sites like YouTube each day and it is impossible to pre-view them all.

In this case the subject of the video was being bullied, presumably at least in part because he suffers from Downs Syndrome. It is not in dispute that the video should not have been uploaded and that its content was repugnant, what is in question is what regulating authorities and the operators of websites that allow user generated content to be uploaded should do about it.

Even an organisation with the might and manpower of Google does not have the resources to screen hundreds of thousands of videos every day before they are released for public viewing. And if the law is changed to require only “approved” videos to be uploaded the tube sites would all pull down the virtual shutters and cease operating.

Inherent in what is often called “Web 2.0”, defined by the ability of users to incorporate their own content into existing sites, is the danger that someone will abuse the powerful tools put at their disposal. If you want ever increasing levels of interactivity, mash-ups and an abundance of creativity you have to accept that a minority of undesirables will sour things for everyone else.

The decision has been described by Google as “ludicrous” and a “chilling decision”. Indeed it is because it seeks to invalidate the clause found in the terms of service of sites such as YouTube that until now have absolved the site of responsibility for the content and placed the responsibility on the user should an upload break the law.

The implications for adult sites and particular adult tube sites could be grave. They thrive on user generated content and even the most successful can not hope to field the resources, both legal and financial, that Google can to defend their operations.

Google and many commentators hope that the decision will be overturned on appeal. If it isn’t Google might pull the plug on Italy and cease operating any of its services in the country to avoid further clashes with a judicial system that seems not to understand or refuses to accept the realities of the Web.

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