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Mosley sues Google over sex video access
DATELINE: 25/11/11
Writing in the Financial Times, 24 November 2011, Ben Fenton, the paper's Chief Media Correspondent, reports that Max Mosely is suing Google over its refusal to censor its own search results to block sites including material about his sex life. The revelation was part of Mosley's testimony to the Leveson inquiry in London which is looking into UK media attitudes to privacy and the use of illegal or unethical methods to unearth information about individuals of interest to the press. Resisting the temptation to demonstrate the ease with which it might be possible to prove Mosley's case, we thought it worth pointing out that the former Formula One boss's vigorous defence of the right to privacy risks coming bang up against several other countervailing rights - most notably the ones about freedom of information and expression.
It's not clear where or whether Google fits into the Leveson Inquiry's remit but Mosley has apparently begun proceedings against the company in France and Germany after spending more than £500,000 on getting a large number of small websites - 193 in Germany alone - to remove defamatory video material featuring him pursuing his interest in flogging.
According to the FT, "the video was taken by a prostitute who was one of five women who took part in what Mr Mosley called a 'party'. The video was commissioned by the News of the World, and a front-page story about it prompted him to sue the now-defunct tabloid successfully for breach of privacy."
Mosley noted that Google's principled position is not "to police the internet", and the company issued a statement in response to his testimony. “Google’s search results reflect the information available on billions of web pages on the internet," it said. "We don’t, and can’t, control what others post online, but when we’re told that a specific page is illegal under a court order, then we move quickly to remove it from our search results.”
For those in Mosley's position, the problem is simply that obtaining court orders for each and every offending website is a lengthy and expensive process. Given the nature of linking on the web, it may even be impossible.
But freedom of expression advocates like Index on Censorship say that Mosley’s aims would challenge the very nature and viability of the web. According to Index, a successful suit against Google would “fundamentally alter the web from the free space that has changed the way we live, ultimately rendering [it] unsearchable as content is not indexed for fear of complaint”.
Search engines must be allowed to retain their status as 'common carriers'. They cannot be held to be responsible for the material published by individual websites, any more than a printed telephone directory can be held responsible for the actions of the individuals or organisations listed in its pages.
Last modified: Tuesday, September 18, 2012
Your comments:
I was just reflecting on the implications of Google being sued for the invasion of Max Mosley's privacy just because its search results linked to pages on the web that Mosley believed were intrusive. While Mosley might consider images of him at his leisure to be intrusive, I don't believe they are in themselves defamatory. If memory serves, the defamation lay in the News of the World's assertion that there was a Nazi element involved in being caned by women in military uniform. We all know that Nazism is not a genetic defect - how could it be, after all? But whatever Mosley's views, his activities were never at issue. So it's straight invasion of privacy - irony absolutely intended.
Google's defence, of course, is that publishing lists of links is not the same thing as publishing what's at the other end of the links. This is the basis of the so-called 'common carrier' argument embraced by Index on Censorship.
But the common carrier argument only has merit if the organisation deploying it can genuinely say that it does not edit the material published on its wires, websites or optical fiber. Telecoms operators, for example, can say with certainty that they have no idea what's on the networks they operate. Postal services may be even better placed, because almost everything they carry is wrapped in an opaque package.
But when a company like Google moves away from just publishing a list of search results, which is the same for everyone who runs the same search, to publishing a list of results customised to individual users, surely the common carrier argument breaks down.
For Google to customise its search results, it has to know a great deal about the person running the search. And it uses this information to edit the content that appears on its website. A customised list of results, in other words, is content-rich. It may remain the case that Google has no control of 'what others post online' as it said in the response to Mosley's Leveson testimony, but it is beginning to control the access people have to what others post online. It is as though the Post Office opened all the packets and letters it carried and decide which ones it was going to deliver to which member of the public. That's not the behaviour of a common carrier.
Surely, the more that Google decides to customise its search results, the less able it is to argue that it is just an innocent conveyor of bits and bytes. If I were Max Mosley's lawyers, I'd have a close look at Google's personalisation and privacy policies. They make a difference.
Posted by: Gary Herman: 2 Feb, 2012 17:10:42
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More reporters are currently imprisoned in Turkey than in any other country in the world. Only a matter of weeks ago lawyers failed to persuade a Turkish court to release a 76-year-old journalist from a Turkish internet news station.
World Press Freedom Day on Friday May 3, 2013 is being marked in Britain by a rally to highlight the dangers facing journalists in Turkey and in this podcast, Nicholas Jones speaks to Barry White, Organiser at the Campaign for Press and Broadcasting Freedom, and Sam Bamford, the TUC's policy officer for Eastern Europe and Africa about the importance of a campaign to highlight international press freedom.
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