In 2008, the News of the World published a typically racy article about Max Mosley, the former head of Formula One racing, which included photographs and video of Mosley participating with prostitutes in a sadomasochistic sex party, or what the newspaper incorrectly alleged was "a sick Nazi orgy".
Mosley is the son of the pre-war British fascist leader Sir Oswald Mosley.
While acknowledging that he had engaged in sadomasochistic activity with five
women and paid them £2,500, Mosley denied the orgy was Nazi-themed and successfully sued the News of the World in the UK and France for gross invasion of privacy.
Since then, he has reportedly spent more than €600,000 on getting material and images about his sex life removed from websites around the world. More recently, he took cases against Google in Germany and in France to force the search engine to automatically filter out links to those images.
This week, the Tribunal de Grande Instance in Paris found in Mosley's favour, ordering Google to pay a symbolic €1 in damages and to set up an automatic filter which would block nine of the images obtained five years ago by the News of the World. From the beginning of next year, Google will be fined €1,000 every time one of those nine images is found through its search engine.
The News of the World has since shut down in the wake of the phone hacking scandal, but the pictures live on and the Mosley case goes to the heart of current debates around issues of online privacy, the "right to be forgotten" and the question of how much responsibility web services such as Google should bear for content which they index or link to on the internet.
If upheld (and Google has already indicated it will appeal), the judgment could fundamentally change the current rules governing searching, linking and sharing – the activities which underpin the way information is distributed on the internet. It could also open the door to a flood of similar claims by people who believe their privacy is being infringed because of online material which shows up in Google searches.
It is illegal under French law to take and distribute images of an individual in a private space without that person’s permission. But Google argued that it is always willing to take down links to specified sites when notified and had done so with hundreds of images that violated the Mosley ruling. An automated filter, it said, would not stop the images from being accessible online, and setting up such a filter would establish “an alarming new model of automated censorship”.
But a lawyer representing Mosley in the lawsuit argued the case "isn't about censoring information, but about complying with French law".
“This is a troubling ruling with serious consequences for free expression and we will appeal it,” said Google’s legal representative after the decision was announced. “The French court has instructed us to build what we believe amounts to a censorship machine.”
As online channels, including search engines and social media platforms, become our dominant modes of communication, traditional legal frameworks governing privacy, copyright and defamation are coming under increased strain.
With privacy laws varying from country to country (France's are particularly stringent), it's almost certain that confusing and sometimes contradictory rulings will emerge across Europe. And with data privacy likely to become an issue in EU-US trade negotiations in the aftermath of the Edward Snowden revelations, there will be particular pressure on the big US tech companies who dominate new media services.
Mosley has filed a similar lawsuit against Google in Germany.
A decision in that case is expected early next year.