How the courts are curbing YouTube

Continuing demonstrations over a controversial anti-Muslim video and recent court judgments against YouTube in Brazil and Europe may be changing the last true bastion of free speech, the internet.

Google's guidelines are running afoul of local laws in different parts of the world

Thai-Muslims hold banners and shout slogans outside Google's Bangkok headquarters as part of demonstrations all over the Muslim world earlier this month. (Apichart Weerawong / Associated Press)

Civil libertarians like to see the web as the last bastion of free speech. But the continuing worldwide controversy over the recent anti-Muslim video and two court judgments against YouTube in Brazil suggest that the internet may well turn into an arena of competing legal rules.

"We are very much in a regime where the internet is a different thing depending on where you access it," says Jeff Hermes, director of the Digital Media Law Project at Harvard's Berkman Centre for Internet and Society.

While there is much talk about freedom on the internet, expecting Google "to just defy censorship orders worldwide is probably unrealistic," he adds.

On Wednesday, Brazilian police arrested Fabio Jose Silva Coelho, the head of operations for Google in Brazil, after the internet company failed to heed a judge's order to remove a series of YouTube videos. 

The videos made provocative statements about an alleged paternity suit involving Alcides Bernal, a mayoral candidate in the city of Campo Grande, and the court in the southern state of Mato Grosso do Sul ruled that they violate Brazil's electoral law.

This decision came on the same day that another court in Sao Paolo gave Google, which owns YouTube, 10 days to remove clips from the controversial anti-Muslim video currently on YouTube's Brazilian site.

According to the Brazilian court statement, once the 10-day window closes, Google will be fined $5,000 US for every day that these clips from the Innocence of Muslims video remain accessible in Brazil.

Tipping point?

"I don't know if we're at a tipping point, but it's probably going to keep getting worse" in terms of limiting freedom of expression online, says Teresa Scassa, a law professor at the University of Ottawa.

Scassa says that while many countries have largely managed to arrive at a consensus about how to apply certain cyber laws — like those regarding copyright infringement — reaching an agreement on what constitutes defamatory material is much trickier.

Actress Cindy Lee Garcia (L) and her lawyer M. Cris Armenta tried to get a U.S. court to have YouTube remove the controversial Innocence of Muslims video. But a California judge turned them down. Garcia said she was duped into appearing in the film and had since received death threats. (Bret Hartman / Reuters)

"I think it's really hard to get an international consensus on values," she says.

"Although these big internet companies operate globally, to the extent that they have presence in individual countries, they are vulnerable to the application of the laws in those countries."

In Brazil's case, the order to take down the anti-Muslim video, was spurred by a lawsuit from the National Union of Islamic Entities, a group representing Brazil's Muslim community. It argued that the film violates Brazil's constitutional right of religious freedom.

As Google sees it, "being a platform, Google is not responsible for the content posted on its site," the company said in a statement. Company officials could not be reached for further comment.

In a statement posted to its blog yesterday, the Electronic Frontier Foundation, a San Francisco-based free-speech advocate, wrote, "Apart from the absurdity of the judicial orders in the last month, these cases highlight the need for strong intermediary protections around the world."

The EFF argues that platforms such as YouTube, Facebook or Twitter should not be held legally responsible for content posted to their sites.

It also encourages countries to enact legislation like Section 230 of the Communications Decency Act in the U.S., which protects sites that host free speech.

Censorship concerns

Google regularly removes YouTube clips when they are deemed to infringe copyright law in certain jurisdictions — for example, when they feature unauthorized use of recorded music.

And in response to the violence spawned by the recent anti-Muslim video, it removed access to these clips in a number of Muslim-majority countries, including Libya and Egypt.

But the global video-sharing site argued that the controversial video was "within its guidelines," even as it is increasingly struggling with how to deal with material that either violates local law or causes offense to certain groups.

Google has spent much of the last month dealing with complaints over Innocence of Muslims, the video created by a small U.S. production company that spurred protests and violence in the Middle East, including the death of the U.S. ambassador to Libya and three other consular employees in Benghazi on Sept. 11.

As Hermes sees it, "The removal of content in certain jurisdictions in response to court orders in those jurisdictions is, in one sense, the best that you can hope for, because at least [YouTube is] not taking it down across the entire internet when one country decides to exercise censorship."

When Google pulled out of China, the state-run Xinhua News Agency announced it would set up an alternative search engine. (Andy Wong / Associated Press)

Certain governments, notably China, have tried to have certain types of content removed from Google and, at first, Google seemed willing to censor search results that might be critical of the Chinese leadership.

But in 2010, after determining that Chinese hackers had attempted to breach some of its services, including Gmail, Google pulled its operations out of mainland China.

Acknowledging the size of the consumer market in China, Google has recently re-established its business there. But its long-running censorship with Chinese authorities has continued and it now offers a program that warns users when they have typed in a search term that may lead to blocked results.

As for legal action, the Brazil case is not the first time that a Google executive has been arrested because of content posted on YouTube.

In 2010, a judge in Milan, Italy, sentenced three Google executives to six-month prison terms for breaking the country's privacy code. (A fourth Google employee was charged but eventually cleared.)

The case centered on a YouTube video of a 2006 incident at a school in Turin, Italy, in which three boys reportedly assaulted an autistic schoolmate.

Google vehemently denied its employees' culpability in the video, saying in a statement, "None of them know the people involved or were even aware of the video's existence until after it was removed."

Google said it took the offending video down within hours of it being posted. In a statement, the company said the Italian judgment "attacks the very principles of freedom on which the internet is built."