Let’s get the declarations out of the way from the outset. I act for Max Mosley and acted for him in his successful case against the News of the World in 2008. Furthermore I have worked with him across a huge number of jurisdictions to address online publications of the images taken from the News of the World web site and immediately disseminated across the world.
Last week the Regional Court of Paris handed down judgment in Mosley v SARL Google France and Google Inc, finding emphatically in Max Mosley’s favour. Google have said that the judgment is ‘troubling’ and I agree in the following respect: why on Google earth did they fight this case?
As Max Mosley has himself explained to CNN, the case is a very simple one. The case concerned nine images. The images had already been found to be unlawful. Google had the various judgments and orders and Google had accepted that it would remove access to the images by use of their notice and take-down procedure.
After years of using the Google take-down procedure (in a number of jurisdictions) only to see the images reappearing ad-infinitum, he asked Google to automate the process. Google are after all the world leaders in this technology and image recognition is a facility it offers for free on its site. Automatically recognising these nine images and stopping them appearing on a Google images search was within the expertise of an ‘averagely experienced programmer’ according to expert witness Professor Viktor Mayer-Schönberger of the Oxford Internet Institute (quoted in lasted week’s judgment).
Google’s argument that it could not perform this task was hopeless. But it continued to fight bitterly against the claim to the extent that it sought 50,000 euros from Max Mosley as a part of its submission to have his case thrown out. Its central argument has developed to rely upon its right to Freedom of Expression under the ECHR, Article 10, and that the claim would have disproportionate consequences for internet users. Google’s lawyer Daphne Keller said afterwards:
‘Even though we already provide a fast and effective way of removing unlawful material from our search index, the French court has instructed us to build what we believe amounts to a censorship machine. This is a troubling ruling with serious consequences for free expression and we will appeal it.’
Rather than appeal, Google should take a step back and think about what it is doing here. This case has nothing to do with freedom of expression or censorship. That case has already been fought. Is it for Google to re-consider court orders and decide that material found to be illegal should after all be published? One hopes that Google would not take this free-expression stand towards indecent images of children or where a court has ordered that a victim of crime should not be identified. These decisions are for a court to make and Google should not be troubled other than to make sure that they comply with the orders. What the case is really about is the rule of law: and whether Google should comply with the law in the jurisdictions in which it operates and makes such vast profits. I will resist, for now, drawing a comparison with its approach to tax.
The reason that this case is important is that Google is now the default mechanism by which we access the Internet. 88% of UK Internet searches are conducted by way of Google, with its nearest rival Bing with little more than 5% of the market share (see here). Google’s market dominance is very slightly larger in France (see here). If Google is able to disregard court orders, it renders the courts, and therefore the law, futile in dealing with online images, which the UK court has recognised quickly disseminate across the internet. The dissemination of images across the Internet is not just an issue for the likes of Max Mosley or indeed the Duchess of Cambridge, it is an increasing issue for all Internet and social media users, particularly school children.
It is indeed troubling that Google seeks to fight individuals like Max Mosley rather than work to provide the simple solution that would help them give effect to the judgments that they have fought hard to obtain. Google isn’t News Group Newspapers, and one would not expect its lawyers to be so belligerent in the face of a challenge that it is in such a good position to resolve. One hopes that they will reconsider their intention to appeal and instead start work on providing a solution. They have two months from the date of the judgment to do so in France. And this mechanism should not be available only to Max Mosley nor apply only in France. Aside from a similar case in Germany, in March 2012 the UK Parliament’s Joint Committee on Privacy and Injunctions came to the following conclusion when hearing from Google on this issue:
‘We find their objections in principle to developing such technology totally unconvincing. Google and other search engines should take steps to ensure that their websites are not used as vehicles to breach the law and should actively develop and use such technology. We recommend that if legislation is necessary to require them to do so it should be introduced.’
There should be no need for legislation in the UK or elsewhere, or damages awards for failing to comply with French judgments. The issue remains in the hands of the executives in Google and I hope that they now see sense. It shouldn’t have come to this.
Dominic Crossley is a Partner and Head of Defamation and Reputation Management at Collyer Bristow LLP
