"I'm under clear instructions from my outside counsel not to set foot in Italy, at all," Fleischer wrote on his blog, revived this week after a seven-month hiatus. "That's a tragedy, since I love Italy."
He also expects that his three co-defendants from Google likewise will remain out of the country, where they face up to three years' imprisonment if convicted.
The Milan prosecutor is slated to proceed this week with an attempt to hold Fleischer and the others criminally responsible for a YouTube clip posted by a high school student. The clip showed the student and three others harassing a 17-year-old with Down syndrome.
The clip went live in September of 2006, but was removed that November, within 24 hours of Google receiving its first complaints about the video.
In the U.S., it's inconceivable that company executives could face criminal charges for a video that a user uploaded to the site. In fact, it's hard to imagine how a company like Google could even be liable for civil damages in this kind of situation, given that the Communications Decency Act immunizes Web sites from liability for unlawful material posted by users. (There's an exception for material that violates intellectual property rights, which is why companies can attempt to sue Google for copyright infringement when users post pirated clips.)
Europe has broader data protection laws than the U.S., but even other European countries haven't threatened to throw executives of Web companies in jail when users allegedly violate someone's privacy.
"Imagine the consequences if every data protection decision made by a company can be second-guessed by a public prosecutor with little knowledge of privacy law," Fleischer warns on his blog. "Does that mean that a data protection lawyer working for a company is running the risk of personal criminal arrest and indictment and prosecution for routine business practices?"
Apparently the answer is yes.