The plaintiff, former Formula One chief Max Mosley, seeks to have published images of a sex party, already deemed to be a privacy violation, removed from Google's search index. Not only does he want the pictures removed, he wants Google to prevent them from being re-indexed on new Web pages through the creation of filters that can detect the images.
"He wants Web companies to build software filters, in an attempt to automatically detect and delete certain content," said Daphne Keller, associate general counsel for Google, in a blog post. "Specifically, Mr. Mosley demands that Google build a filter to screen Google's index and proactively block pages containing images from our results — without anyone, much less a judge, ever seeing it or understanding the context in which the image appears."
In July 2008, Mosley won a £60,000 award (and £420,000 in legal fees) from News Corp.'s News of the World, shuttered in 2011 over its involvement in a U.K. hacking scandal, when a British court found that his privacy had been invaded through the publication of the pictures in question.
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Keller says Google sympathizes with Mosley's plight and that it offers tools to remove specific Web pages from its search index when those pages violate the law. She adds that Google has already removed hundreds of pages for Mosley and is ready to remove more.
What Google isn't willing to do is become the Internet's censor. Keller stresses that European law lays out the responsibilities of content platforms and that those obligations do not include preemptive censorship. She also notes that one page Mosley sought to remove from Google's index receives most of its visitor traffic from sources other than search.
Removing a page from Google's index does not remove it from the Internet. So while action by Google might make the offending images more difficult to find, it would not make them any less available.
Mosley's litigation comes as European lawmakers are mulling how they might implement a right to be "forgotten," described in a pending update to Europe's 1995 Data Protection Directive but not yet codified into law. Detractors of the concept characterize it as a right to erase history in the name of privacy.
Google faces a similar claim in Spain, brought by a man identified by a newspaper as a tax debtor. The Spanish Data Protection Agency ruled that the newspaper did not have to remove the article, because the article cited a government source, but that Google had to scrub the article from its index. Google subsequently appealed to the European Court of Justice, Europe's high court, and received support for its position from a court legal expert in June.
Had Mosley made a YouTube copyright claim rather than a privacy claim, things might be different. Copyright holders can avail themselves of the sort of preemptive filtering that Mosley seeks. Google's YouTube allows copyright holders to submit files to its Content ID system and to respond according to one of three possible usage policies set by the copyright holders. Possible policies include: Block, Track and Monetize.