Could there be a less probable, less sympathetic and therefore better test case for privacy on the Internet than the sex life of former world motor racing chief Max Mosley?
Mosley, 73, whose father Oswald headed Britain's fascist movement in the 1930s, was caught five years ago in what the U.K.'s now-defunct News of the World newspaper called a "Nazi-style orgy." England's High Court disagreed with the Nazi part, but it was bad enough: a sado-masochistic sex romp with prostitutes, using a German prison-camp theme.
Since then, Mosley has been trying to force Google Inc. to automatically filter images of his 2008 tryst in a London sex dungeon from its search engine. Today, a French court ruled in his favor on nine photographs.
It's hard to take Mosley's side. Daphne Keller, Google's associate general counsel, told Bloomberg News after the verdict that, "This decision should worry those who champion the cause of freedom of expression on the Internet." The company has to be concerned that many other people will now claim breach of privacy, and demand that content they don't like be filtered. The company was also ordered to pay a token 1 euro in damages and 5,000 euros of court costs.
The pictures were taken in what amounted to a sting operation by the News of the World, whose former editors are on trial in London for illegal phone hacking. The tabloid newspaper got the pictures from one of the dominatrixes involved, "Woman E" in the trial, who secretly filmed the session.
Courts in the U.K. (in 2008) and France (in 2011) ruled that Mosley's privacy was illegally breached and between them fined the newspaper a total of $140,000. As the English High Court's Justice Eady said dryly in his judgment, Mosley was entitled to privacy for "sexual activities (albeit unconventional)." He rejected the News of the World's argument that there was a public interest in running the story due to Mosley's job at the time, running the international body that governs Formula One racing.
What makes the Google case clear, and the company's fears manageable, is that court decisions already existed ruling that Mosley's privacy had been violated -- that's a high bar for people to cross if they want something taken off Google.
Google, of course, isn't like a newspaper or TV broadcaster. It doesn't make a conscious decision to post content and doesn't even host the images concerned. Yet Google can block its search engine from linking to content for specific markets and if it doesn't, getting content removed becomes an endless game of Whac-A-Mole for victims who may be a lot more worthy than Mosley. Google should have the same duty to the implement the law. This is a big money-making operation, after all. It doesn't run its search engine for charity.
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