In 2008, now-defunct tabloid News of the World (you might remember it from the phone hacking scandal) published details and hidden camera footage of former Formula One racing head Max Mosley engaging in a sadomasochistic role-playing romp with five women. Mosley later sued the magazine for invasion of privacy and describing the romp as a "sick Nazi orgy" — winning a £60,000 award from a U.K. court in 2008, which agreed there was "no evidence" of a Nazi theme. He also won a smaller award from a French court in 2011.
But Mosley is upset that you can still find evidence of his escapades via Google. So he's suing Google — not once but twice, in both France and Germany. And now, predictably, every tech site is writing about his sexcapades.
Mosley wants Google to automatically filter any thumbnail images of the video or links to it from Google's search results. "Google is perpetuating not only the spread of these illegal images but it is perpetuating the curiosity of Internet users," argued Mosley's lawyer, Clara Zerbib, in a hearing in Paris on Wednesday.
Google doesn't quite see it that way, arguing that developing an automatic system would essentially be creating a new form of censorship and would almost inevitably mean blocking news sites or parodies that might use the images. Google also says it removes offending search results with the images when it is given a specific link, and that European law doesn't require any such automatic filtering.
"You can't decide now that the context for these links will forever be illicit," said Google's lawyer Christophe Bigot in the hearing, adding, "[t]he balance between privacy and free expression is necessarily case by case."
Mosley's case could be a bellwether for privacy rights in Europe, especially as the European Union considers proposals to update data privacy rights. One proposal would create a "right to be forgotten" that would give individuals more control over what turns up about them online. But a legal opinion from a senior adviser to the European Court of Justice sided with Google this summer in a similar case, saying that search engines like Google can't be considered the controller of personal data on other Web sites, so member state data protection authorities "cannot require" them to remove specific sites from search results.
The real irony of the whole dispute is that Mosley's recreational activities probably wouldn't have been more than a passing tabloid story if they hadn't resulted in a series of lawsuits. It's a classic Streisand Effect, the phenomena named for Barbra Streisand's 2003 attempt to suppress photos of her house which inadvertently resulted in further publicity around the photos.
But Mosley himself seems aware of that: "If you bring a case like this, a lot of people will then will look for whatever it is you're suing about," Mosley told the Wall Street Journal after the hearing, "[b]ut that's the price you pay."