What Max Mosley is attempting to do in France isn't quite clear. While it's true he's gotten a French court to order Google to remove images of him taken at a sadomasochistic sex party in 2008, the ruling, which was issued on Nov. 6, has only brought more attention to those photographs. People who had no idea even who Mosley is (a one-time president of the International Automobile Federation, which is famous for its Formula One races, and the son of the leader of Britain's fascist movement in the 1930s) have plugged his name into the Google Images search bar to see what the big deal is and have been rewarded -- probably not quite the right word -- with pictures of him engaging in sadomasochistic activities with five prostitutes.
Mosley has been pursuing legal remedies since those pictures were snapped by participants of the sex party and leaked to the media before making their way to the Internet. The pictures were originally published by the now-defunct News of the World (remember the British phone-hacking scandal?) and courts in England and France ruled the newspaper had invaded his privacy, fining News of the World $140,000.
On Nov. 6, the French court ordered that Google find a way to ensure it contains no links to the images, despite who may have posted them or where they are stored. The court also ordered that Google pay Mosley $1.35 (yes, that's the correct amount) in damages and threatened fines of 1,000 Euros every time one of the nine photos is found by Google's search engine, beginning in 2014.
In response to Mosley's pleadings, the Tribunal de Grande Instance in Paris ordered Google to block references to the images from appearing in Google's search results worldwide. We repeat: worldwide.
"Who on Earth gave a French court the power to determine what may be seen in Albuquerque? Or Acapulco or Alberta for that matter?" asked Forbes' Tim Worstall.
And, as Worstall noted, banning content on the Internet makes people more likely to share it.
"Barbara Streisand tried to have pictures of her Malibu mansion removed from a digital collection of Californian coastline photographs, which fewer than 10 people had viewed prior to her unleashing the legal attack dogs," wrote Worstall. "However, after finding out about the pictures, almost half a million people tried to download them."
Google has said it will appeal the ruling.
"Even though we already provide a fast and effective way of removing unlawful material from our search index, the French court has instructed us to build what we believe amounts to a censorship machine," stated Daphne Keller, associate general counsel at Google, in a statement released to the media. "This decision should worry those who champion the cause of freedom of expression on the Internet."
"It is indeed worrying," wrote Worstall. "For the effect could be to start imposing French privacy law upon non-French servers. The European court is requesting that the company build a new software filter to catch new versions of posted images continuously and remove them."
As more than one industry analyst has noted, while Google has the capability to delete images from its site, it cannot prevent users from re-posting them.
"Google, of course, isn't like a newspaper or TV broadcaster," noted Bloomberg's Marc Champion. "It doesn't make a conscious decision to post content and doesn't even host the images concerned."
However, Champion noted that people more worthy than Mosley should have a tool at their disposal to restrict the posting of offensive, not newsworthy, images on the Internet.
"Google can block its search engine from linking to content for specific markets and if it doesn't, getting content removed becomes an endless game of Whac-A-Mole for victims ..." he wrote. "Google should have the same duty to the implement the law. This is a big money-making operation, after all. It doesn't run its search engine for charity."
But Padraig Reidy, news editor of Index on Censorship, noted that asking Google remove information is to misunderstand the role of search engines.
"Search engines are not publishers and cannot be held responsible for everything on the web. If they are held responsible, it would fundamentally alter the web from the free space that has changed the way we live, ultimately rendering the web unsearchable as content is not indexed for fear of complaint."
Emily Butselaar, writing for Index on Censorship, noted courts have still not found a way to distinguish between suppressing information of genuine public interest and allowing intimate facts of no value to be intrusively obtained and published for "sniggering entertainment."
"The tension between free speech and privacy is inevitable, and there is no ideal solution," she wrote. "But we must stick to our constitutional principles: justice must always be seen to be done, and remedies for human rights abuses must be workable, publicly acceptable, and should not bring the courts into disrepute."
Butselaar recommends lawmakers should "sweep away super-injunctions and all the Euro-nonsense that has accreted to the concept of privacy, and pass a law creating a civil wrong of publishing intimate personal details, unjustified by exposing crime or serious impropriety, protecting public health or safety, or revealing hypocrisy. Let the press be free -- and let it take the consequences if it abuses that freedom."
What Butselaar is suggesting is to let juries decide what is and what isn't newsworthy and allow them to decide what the punishment should be.
But we also have another suggestion, whether you're engaging in kinky sex, bullying a classmate, partying like it's 1999, committing a crime, or generally just behaving like an idiot, you can always assume in this age of personal mobile devices, someone is recording you and eventually that recording will find its way onto the Internet.
While it's important that people have legal remedies when their privacy is invaded, it's also important that all of us recognize that cameras are a part of life, and perhaps we should start acting that way. Maybe society would be better off if we all took that to heart.