The legal wrangling over ‘the right to be forgotten’ reached a court in Paris last week as Max Mosley began the next stage of his fight to have details about his sexual past erased from Google’s search engine.
Mosley is showing no sign of retiring his fight for privacy after the News of The World published videos and images of the former Formula One head taking part in an S&M orgy in 2008. Although Mosley successfully sued the now defunct paper for breach of privacy and won £60,000 in damages, the material originally released by the NoTW had journeyed the length and breadth of the internet, making it impossible for Mosley to realistically demand removal.
Instead, his attention has turned to Google’s ability to control its search engine. Mosley wants Google to introduce a filter to prevent the material appearing in any search results, arguing that sexual activity is a private matter and Google should take more responsibility.
But Google is standing firm. Daphne Keller, associate general counsel at Google, released a blog as the case got underway in Paris and while she sympathised with Mosley’s plight, she argued that the filter would be a “dangerous new censorship tool” and issued a warning of the consequences of Mosley’s action should he be successful.
“He [Mosley] wants web companies to build software filters, in an attempt to automatically detect and delete certain content,” Keller wrote.
“Specifically, Mr. Mosley demands that Google build a filter to screen Google’s index and proactively block pages containing images from our results – without anyone, much less a judge, ever seeing it or understanding the context in which the image appears.
“This not just a case about Google, but the entire Internet industry. If Mr. Mosley’s proposal prevails, any start-up could face the same daunting and expensive obligation to build new censorship tools -- despite the harm to users’ fundamental rights and the ineffectiveness of such measures.”
Mosley has also filed a suit against Google in Germany in an effort to find a legal ruling which will set a precedent in case law and in an interview given to the Wall Street Journal, he refuted claims that his fight was about censoring the internet.
“They say ‘We don’t want to censor the net,’ and, ‘We don’t want to supervise the net.’ I say we’re not asking you to do that,” he told the publication. “We’re asking you to censor or supervise what you publish yourself.
“These are specific pictures. They’re all there in the pleadings, the exact pictures. And as it’s illegal to show these pictures, you shouldn’t show them. And they acknowledge this in the sense that if you find one being shown, they will take it down. I’m saying because you have the technology to stop them appearing in the first place, you should.”
In June, an adviser to the EU’s highest court made a statement saying that Google should not have to remove personal information from search results, even if it could damage a person’s reputation.
“Search engine service providers are not responsible, on the basis of the data protection directive, for personal data appearing on web pages they process,” said Niilo Jääskinen.
The statement was prompted by the case of a Spanish man who took Google to court to request the deletion of information about his former home being auctioned after it was repossessed. Google appealed the decision of the Spanish court to uphold the complaint and the case was sent to the European Court of Justice last year.
Jääskinen’s comments would have been particularly welcomed by Google following moves by the European Commission to update data protection legislation, supporting the right to be forgotten. Google is fighting the battle on a number of fronts in Europe as pressure has mounted on the tech giant over its central role in the privacy challenges thrown up by the digital revolution.
Law lecturer at the University of East Anglia, Paul Bernal, said the difficulty in the debate existed because both sides of the argument could be considered “right” and the practical difficulty of a search filter is a factor.
“This has been an issue in a whole range of areas, from the things that invade privacy, like the Max Mosley case; to pornographic material, demonstrated by Prime Minister David Cameron’s proposed filters; copyrighted material; hate speech; Nazi memorabilia, which is illegal in many European countries, and so on,” he explained.
“Google don't want to filter this because it's hard to do from a technical perspective (and in some cases impossible - e.g. differentiating between a picture of a naked body on a medical website and one on a pornographic website), because it interferes with the way they do their business, and because it interferes with 'free speech'. I think they're right to resist in general, because filters generally both over block and under block.
“Meanwhile, distributers of illegal material can avoid these filters with a little cleverness - using code words, for example. Google, in this sense, are probably right.
“Max Mosley, on the other hand, is probably right to suggest that the best way to avoid people finding things that they shouldn't find would be through the search engines - but from the perspective of free speech, the price paid is probably too high. Moreover, it would be almost impossible to enforce in the US, as the First Amendment guarantees free speech. Google is an American company, and behaves accordingly."
He added: “I expect Google to stand firm on this, and not let themselves be forced. There's a lot at stake - they talk about free speech, but there are also huge benefits to their business that they want to fight to keep.”
The legal battle over the right to be forgotten versus fears of legislative inroads to wider censorship will likely be lengthy as the single entity of Google responds to the demands of greater numbers of governments trying to integrate Google policy with their own laws and regulations.