French Google verdict an obligation to censor?

In a landmark ruling with potentially major ramifications for web search providers, a French court has ordered Google to automatically filter out images of former Formula One boss Max Mosley involved in a sadomasochistic orgy.

Google has promised to appeal the order to automatically filter nine images for a period of five years.

The offending images were taken from hidden camera footage of an orgy from 2008. Images from the footage were published by defunct Murdoch tabloid News of the World, and courts in both the UK and France have ruled that publishing the images constituted a breach of privacy.

The timing of the verdict is significant because the European Union is engaged in a debate over whether to introduce new privacy legislation that would enforce “the right to be forgotten”, or for citizens to ask internet service providers to delete personal information collected about them.

Notably, the French verdict also came the same month Google provided an updated Transparency Report, detailing the numerous requests to remove copyright content it acts on every month. In the last month, copyright owners have requested that 26.6 million URLs be removed, and Google says it acts on 97% of takedown requests.

This means there is already a robust system in place to remove content from Google search results. The crux of Google’s argument in the French case is that this system should be enough. In a blog post from September, Google Associate General Counsel Daphne Keller said Google has already removed hundreds of links to the offending images at Mosley’s request.

“But the law does not support Mr Mosley’s demand for the construction of an unprecedented new internet censorship tool. In repeated rulings, Europe’s highest court has noted that filters are blunt instruments that jeopardise lawful expression and undermine users’ fundamental right to access information,” she said.

“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.”

Ovum Chief Telecoms Analyst Jan Dawson said with the global attention the French verdict has drawn, the case may have defeated its own purpose.

“The Streisand Effect definitely seems to be in full swing here - the offending images have got far more attention because of the high-profile case than they ever would have if Mosley had left well enough alone.”

The Streisand Effect is named after an incident in 2003 in which Barbara Streisand filed a lawsuit to have an aerial photograph of her California property removed from Pictopia.com. The publicity the lawsuit attracted led to the image being viewed over 420,000 times in a month. Affronted by the censorship attempt, internet vigilantes also took it on themselves to widely disseminate the image.

Dawson said that while on a technical level, it should be “relatively straightforward” for Google to comply with the verdict, “it breaks a fundamental principle of Google’s search engine, which is that it is entirely algorithm based and that human beings don’t intervene in results. However, Google already has to tweak its algorithm in various countries where certain material is illegal, so it’s unlikely that it will represent a significant burden.”

As such, the verdict is likely to be merely a frustration for Google, Dawson said. “But decisions like these are far more damaging to smaller internet companies which have to be aware of different laws and approaches to privacy in the many different countries where their services are available.” Precedent like this could seriously impair smaller firms’ ability to serve the entire internet, she said.

IBRS advisor Guy Cranswick said the French case highlights some interesting differences between the expectations of privacy in various nations. “In Europe, privacy is a [mandatory] right. In the UK, it is not a right until breached. Something similar holds in Australia,” he said.

Asked whether protecting the individual’s right to privacy justifies jeopardising the openness of the internet or censoring it, Cranswick said defining the type of privacy is important to answering this question.

The Mosley story is not about privacy in the same sense as the high-profile NSA leaks, he said. “This is tabloid titillation that ridicules a man in public life with his behaviour. The only upholders of this type of revelation and intrusion into private life are the hypocrites of tabloid newspapers who bleat that the public should know such things.”

Ovum’s Dawson would agree that the answer is more nuanced. “It’s unrealistic to expect either perfect free expression or perfect protection of privacy - real life will always fall somewhere on that spectrum,” she said.

Electronic Frontiers Australia Treasurer Daemon Singer pointed out that the technology the court has asked Google to implement has been around for several months and is already being used by several providers to identify child pornography images.

“The French court has done an interesting thing which essentially prevents a crime being committed - the crime being to view an image which has been found to defame someone,” he added.

“The particular issue with the Mosley photos is that now Google have had a court rule against them as being responsible for management of the net, how they are going to implement the filter algorithm, to find the dozen or so pictures [in question].”

While the EFA supports the right to privacy, he said, people need to accept some responsibility for their actions.

“Mosley had the money to take Google on in France, and that makes him wealthy, not smart. For others, the constant view of themselves in Google stops them getting jobs and moving forward in life, because of a bad decision as a teenager,” he said. “Thankfully, the French court only awarded him €1. They at least saw that the fault lay with him, not Google.”

Image courtesy of Isaac Mao under CC