YouTube Does Brazil
In September of last year, while on the beach in Spain, Brazilian supermodel and TV personality Daniela Cicarelli was filmed taking part in intimate acts with her boyfriend, Renato Malzoni, a Brazilian banker. The video naturally appeared soon thereafter on YouTube. A sympathetic judge agreed with the couple that the video was an inappropriate invasion of their rights to privacy and directed YouTube to remove the offending clip. The company then complied with a Brazilian court injunction to remove the video after the couple sued. YouTube appears to have made a good-faith effort to purge the clip from their site, except that the clip was repeatedly reposted by other users. Malzoni returned to court in December to argue that YouTube’s systems for blocking content were inadequate. Meanwhile, the clip had become the most watched clip on the video-sharing site in Brazil with over 5 million viewings. The judge agreed that further action was needed and Brazilian Internet service providers (ISPs) were subsequently instructed to ensure that the video clip on YouTube could not be accessed in Brazil. The ISPs, in no position to do better than YouTube in blocking a specific video clip, then moved to block the entire YouTube site on January 4th.
By the time that this step was taken, the clip had already propagated to numerous other video-sharing sites around the world, rendering the ban of YouTube in Brazil largely ineffective in protecting the right to privacy of the couple. The clip can be found easily by anyone interested in watching it.
Blocking YouTube entirely was clearly an overreaction and was soon reversed by the same judge. This case points out that the issue of balancing free speech and the right to privacy on the Internet is far from being settled. Indeed, there is no obvious resolution. With current technologies, removing inappropriate, offensive, or illegal content from the Internet is impossible in practical terms.
Law suits are one potential avenue for addressing this issue. After purchasing YouTube, Google represents a very large target for a wide range of possible law suits related to the posting of materials by individuals from around the world. However, holding YouTube or ISPs liable for damages associated with material that is libelous, impinges on copyrights or infringes on one’s right to privacy would come at a prohibitive cost; the impact of this on free expression would be profound. These private companies would be forced to preemptively filter anything that suggested trouble, producing a heavily sanitized version of the world.
In the United States, this impact is reflected in laws that limit liability for ISPs and online service providers. Section of 512 of the Digital Millennium Copyright Act provides a safe harbor to online service providers if they expeditiously remove material that is alleged to violate copyright.
Individuals might be held liable in such cases, although this can be extremely difficult to enforce across international borders. This offers little comfort to Cicarelli and Malzoni. The irony being that their efforts to limit exposure fueled the publicity and popularity of the video.
The future of this is unclear. The next round will be fought under a new set of technological realities. Jonathan Zittrain points out that technology, though it does not now exist, might be developed to fingerprint a specific video clip. The policies of private companies such as Google and ISPs will adapt to these new possibilities and new legislation may be proposed. And Internet users will find new ways to circumvent the best intentions of both.
For those hoping to limit the free distribution of information on the Internet, the lesson in this is that the better publicized, more interesting, and perhaps more prurient the content, the harder it will be to limit. This is not unambiguously good news for free speech advocates. The tools, laws and policies that are developed to apply to these high-profile cases are easily adapted to more subtle and wide-reaching censorship of the Internet.
