When American and European Ideas of Privacy Collide

"On the Internet, the First Amendment is a local, ordinance," said Fred H. Cate, a law professor at Indiana University. He was talking about last week's ruling from an Italian court that Google executives had violated Italian privacy law by allowing users to post a video on one of its services.

In one sense, the ruling was a nice discussion starter about how much responsibility to place on services like Google for offensive content that they passively distribute.

But in a deeper sense, it called attention to the profound European commitment to privacy, one that threatens the American conception of free expression and could restrict the flow of information on the Internet to everyone.

"Americans to this day don't fully appreciate how Europeans regard privacy," said Jane Kirtley, who teaches media ethics and law at the University of Minnesota. "The reality is that they consider privacy a fundamental human right."

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But Ms. Wong said Google's policies on invasion of privacy, like its policies on hate speech, pornography and extreme violence, were best applied uniformly around the world. Trying to meet all the differing local standards "will make you tear your hair out and be paralyzed."

The three Google executives were sentenced to six months in prison for failing to block a video showing an autistic boy being bullied by other students. The video was on line for two months in 2006, and was promptly removed after Google received a formal complaint. The prison sentences were suspended.

Still, Judge Oscar Magi's ruling, in effect, balanced privacy against free speech and ruled in favor of the former. And given the borderless quality of the Internet, that balance has the potential to affect nations that prefer to tilt toward the values protected by the First Amendment.

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Americans like privacy, too, but they think about it in a different way, as an aspect of liberty and a protection against government overreaching, particularly into the home. Continental privacy protections, by contrast, focus on protecting people from having their lives exposed to public view, especially in the mass media.

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"The privacy protections we see reflected in modern European law are a response to the Gestapo and the Stasi," Professor Cate said, referring to the reviled Nazi and East German secret police - totalitarian regimes that used informers, surveillance and blackmail to maintain their power, creating a web of anxiety and betrayal that permeated those societies. "We haven't really lived through that in the United States," he said.

American experience has been entirely different, said Lee Levine, a Washington lawyer who has taught media law in America and France. "So much of the revolution that created our legal system was a reaction to excesses of government in areas of press and speech," he said.

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In 2004, the European Court of Human Rights relied on [Article 8] to rule that Princess Caroline of Monaco could block German magazines from publishing pictures of her - quite tame pictures - that had been taken in public. "I believe that the courts have to some extent and under American influence made a fetish of the freedom of the press," ...

The differing conceptions can have profound consequences. "Europeans are likely to privilege privacy protection over both economic efficiency and speech," Susan P. Crawford, who teaches Internet law at the University of Michigan, wrote in an e-mail message. "They're willing to risk huge economic losses and erect trade barriers in order to protect privacy."

The Italian prosecution would be unimaginable in America. The Communications Decency Act of 1996 leaves online companies free of liability for transmitting most kinds of unlawful material supplied by others. Prosecutions for truthful speech on matters of public interest are almost certainly barred by the First Amendment.

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In some ways the Italian video represents the easy case. Google was merely a conduit for other people's information, and that may well be enough to protect it in most of Europe.

The harder cases arise when Google is more active in gathering and disseminating information, as in its StreetView service, which provides ground-level panoramas gathered by cars with cameras on them. The program has generated legal challenges in Switzerland and Germany.

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