Internet justice: Mosley v Google

February 2nd, 2015 by Barry Sookman Leave a reply »

In the landmark ruling in Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González (case no. C-131/12, May 13, 2014), the Court of Justice of the European Union (CJEU) recognized that search engines are controllers of the personal information they process and have the obligation, in appropriate cases, to de-list links to personal information in their search results. A recent decision in  Mosley v Google Inc & Anor [2015] EWHC 59 (QB) (15 January 2015) has recognized that a right to get a blocking order against a search engine might also exist in the United Kingdom under the UK Data Protection Act 1998. The case also illustrates the challenges individuals have in vindicating their privacy interests in the Internet context.

Getting illegally obtained materials off the Internet or finding a way to make them inaccessible has become a Sisyphean task. Just ask Max Mosely. In 2008, a prostitute took video footage of him on a concealed camera provided to her by a News of the World journalist while he was engaged in private sexual activity in a flat in Chelsea. Still images from the footage were published prominently in the News of the World newspaper and on its website in 2008. The newspaper and website were viewed by millions of people. He sued and after a trial in 2008 a UK court held he had a reasonable expectation of privacy in relation to sexual activities which had been infringed by publication of the images and video footage. He was awarded £60,000 compensatory damages and a permanent injunction restraining NGN Limited, publishers of the News of the World, from republishing them. No injunction was made against persons who were not parties to the action.

Max Mosely was so offended his rights had been violated by News of the World without giving him prior notice, that he made a complaint to the European Court of Human Rights contending that the United Kingdom had violated its positive obligations under Article 8 of the European Convention on Human Right by failing to impose a legal duty on the News of the World to notify him prior to publication to allow him the opportunity to seek an interim injunction and thus prevent publication of the material. The Court rendered a decision in 2011, Mosley v The United Kingdom [2011] ECHR 774 (10 May 2011). It rejected his claim, but not before noting that “the conduct of the newspaper in the applicant’s case is open to severe criticism” and despite Mosely’s “efforts in a number of jurisdictions, these images are still available on the Internet”.

Mosely had hoped that the successful outcome of his litigation in the UK and the deterrent effect which it would have on persons minded to republish the images or footage would lead to a gradual loss of interest in these events. To a degree, this happened; but persons other than NGN still maintained posts of the images on websites accessible by search engines on the internet.

Determined to reduce access to the illegally taken photos, he brought proceedings in various jurisdictions to get Google to block access to the photos from its search results. Google refused to help Mosely prevent the dissemination of the titillating photos in France. But, Google was ordered to block access to the photos accessible using any of Google’s search engines including google.com by a court in Paris in Mosley v. Google (Case No. 11/07970, Tribunal de Grand Instance de Paris, decision of November 6, 2013). Google also refused to block access to the photos from search results in Germany when demanded by Mosely. The case went to court there, and another blocking order was made against Google by a German court. See, D. Crossley, “Case Law, Hamburg District Court: Max Mosley v Google Inc”, online: Inforrm’s Blog”.

After these partial victories, Mosley commenced proceedings against Google Inc in the UK for a similar blocking order. Mosley claimed, and the UK court agreed, that getting the photos off the Internet by getting blocking orders on a site by site basis “is a Sisyphean task; even when a number of sites are blocked, many remain and some appear anew. It is at least arguable that this means of blocking access to the images is insufficiently effective to secure their disappearance from view.”

Despite the clear breaches of Mosely’s privacy rights and the ease with which Google could have blocked access to the offending photos in the search results it publishes and notwithstanding the decisions of the courts in the Google Spain, Google France and Google Germany cases, Google refused to voluntarily co-operate to help Mr Mosley as asked.  In fact, it brought a motion to strike out the claim as disclosing no reasonable action.

Mosley’s claim in the UK was advanced in two ways: (1) at common law, for misuse of personal information by publishing it, by the means by which Google software directs searches to website addresses displaying the images; and (2) under sections 10 and/or 13 and 14 of the Data Protection Act 1998. The court focused on whether a remedy could be obtained under the UK DPA. Under Sections 10, 13 and 14 of that legislation, persons whose data is being processed in violation of the law, are entitled to various remedies including, in certain cases, the rectification, blocking, erasure or destruction of any of data.

Google responded that it was not a data controller. However, after the decision in the Google Spain case, Google conceded it was a data controller for the purpose of the DPA. After several jurisdictional losses by Google in the EU, Google also didn’t seek in the motion to strike the claim for lack of personal jurisdiction over Google.

Google’s main defense was premised on its having a safe harbor under the European E-Commerce Directive, Directive 2000/31/EC of the European Parliament and of the Council on 8th June 2000. The Directive applies to, amongst others, internet service providers (which the court stated included Google) who facilitate the obtaining of information provided by others via the internet. The court noted that this defense was implicitly rejected by the CJEU and held that the Directive did not override the remedies which the DPA made available for violation of privacy rights under the DPA.

Google also sought to strike the claim arguing that the order sought would be illegal under the E-Commerce Directive because it involved general monitoring. However, the CJEU has ruled in other cases that blocking orders can be made against internet intermediaries in full compliance with that Directive and the fundamental rights and freedoms protected in the EU. See, Blocking orders against ISPs legal in the EU: UPC Telekabel Wien, Keeping The Pirate Bays at Bay: using blocking orders to curtail infringements. This jurisprudence was recognized by the UK court which stated:

However, the jurisprudence of the Court of Justice suggests otherwise. In L’Oreal SA and eBay International AG [2012] Bus LR 1369, at paragraph 139, the court stated:

“First, it follows from article 15(1) of Directive 2000/31, in conjunction with article 2(3) of Directive 2004/48, that the measures required of the online service provider concerned cannot consist in an active monitoring of all the data of each of its customers in order to prevent any future infringement of intellectual property rights via that provider’s website.”

This lead the General Court to discharge an order requiring the installation of a filtering system to prevent file sharing in breach of copyright in SABAM (No.1) C-70/10, 24 November 2011, [2012] ECDR 4, because it involved active observation of all electronic communications conducted on the network.

It should be noted, however, that the Grand Chamber in L’Oreal also stated, at paragraph 144, in relation to trade mark infringement that:

“In view of the foregoing, the answer to the tenth question is that the third sentence of article 11 of Directive 2004/48, must be interpreted as requiring the member states to ensure that the national courts with jurisdiction in relation to the protection of intellectual property rights are able to order the operator of an online marketplace to take measures which contribute, not only to bringing to an end infringements of those rights by user of that marketplace, but also to preventing further infringements of that kind. Those injunctions must be effective, proportionate, dissuasive and must not create barriers to legitimate trade.”

The court saw no reason to apply a lower standard when it came to protecting personal information under the DPA. It was also accepted that Google could block access to the photos using technological measures it regularly employs to block child sexual abuse imagery. According to the court it was “common ground that existing technology permits Google, without disproportionate effort or expense, to block access to individual images”.

The court accepted that Mr Mosley had established a viable claim which raised questions of general public interest, which ought to proceed to trial. Accordingly, it dismissed Google’s motion to dismiss the claim.

On a straightforward reading of section 10, provided that the claimant proves that he has suffered or is suffering substantial unwarranted damage or distress as a result of the processing of his personal data by Google (as he says he has) and has given written notice to Google (as he has done) and Google do not advance any reason for stating that the notice is unjustified, the claimant is entitled to ask the court to order Google to take such steps as it thinks fit to comply with the notice and the court is entitled so to order.

Apart from the reasons of principle set out below, Google does not give any reason why the notice is unjustified. The claimant’s assertion that he has suffered substantial unwarranted distress is plainly capable of belief, and, if so, founding the remedy which he seeks. Subject, therefore, to Google’s argument of principle, the claimant’s claim for relief under section 10 is at least reasonably arguable…

For all of those reasons, in my judgment, the claimant’s primary case on the issues which I have identified is not such that it has no real prospect of success. On the contrary, it seems to me to be a viable claim which raises questions of general public interest, which ought to proceed to trial.

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