Nov 262011
 November 26, 2011  Posted by  Featured News, Online

James Cusick reports in The Independent:

Max Mosley’s legal attempt to force Google in France and Germany to act as a self-appointed censor and remove controversial material ahead of any formal court order, would “fundamentally alter the web”, according to a leading free-speech pressure group.

Mr Mosley, the former head of world motorsport who won a £60,000 privacy action against the News of the World following a libellous story that wrongly alleged a “Nazi-themed” orgy with five prostitutes, is suing the leading internet search company in Germany and France, and is legally active in 20 other jurisdictions. All actions aim to remove any link to the NOTW article and video.

The Index on Censorship claimed the legal action by Mr Mosley showed a fundamental misunderstanding of the role of search engines.


The criticism comes as no surprise to me. And as someone who does understand the role of search engines, I still find myself in some sympathy with Mr. Mosley on this – even though I never liked him as the head of F1, don’t like him now, and would probably never want to socialize with him.

All that said, let’s review: he was set up to have his privacy invaded. It was invaded and he was defamed. As Cusick notes, there is legal action in 20 other jurisdictions – all trying to get rid of coverage that has already been adjudicated to be defamatory in the U.K. And yet despite his efforts, if you were to Google “Mosley Nazi Orgy” today, look at the first few results:

Two of the first four results are the older allegations, even though some of them might appear to be recent – and they are from the U.K.

Most of us do not have the means to initiate court action in multiple countries and jurisdictions. For most of us, if something like this happened, we’d be stuck with it.

But why should it be on the victim to have to clean things up?

Discussing what happened in this case is important, and I wouldn’t want to see all discussion of it or references to it disappear from the web – or even from Google’s search engine.  Removing all results that contain “Nazi” and “orgy” and “Mosley” would deprive us all of serious discussions of the case in terms of media and defamation law. But why should copies of old – and defamatory – news coverage show up in search engine results uncorrected or without annotation?

Surely, Mr. Mosley could go sue every paper and blog that quoted or reprinted the original defamation and demand that they remove or correct their coverage. Well, at least in theory he could. But why should the victim of a privacy invasion or defamation have to do that?

Perhaps it would have been better had the court ordered News of the World to clean up the mess it caused by ordering them to ensure that all existing copies or derivatives contain a statement that says “This material was found to be untrue and defamatory” at the top of each article. It would be a difficult task, of course. But why should it be on Mosley?

Mosley’s action does not seek to remove all the articles from the web. What it does do is seek to make them not so readily available.

And if it was you, wouldn’t you think that was a reasonable compromise given what you had already endured?

We need defenders of free press and free speech. But we also need privacy advocates who realize that egregious privacy invasions call for us to stand up and say, “Make this right.”   Google is not the enemy here, but their service, to the extent it perpetuates a problem, has some responsibility, despite free speech advocates’ insistence that they merely list results of what’s out there.

If Google has already removed hundreds of links, maybe it’s time for it to take a different approach.  One alternative would be for Google to add a boilerplate message at the beginning of search results for a particular search string that says “The material in this site may contain material that was subsequently deemed to be untrue and defamatory.”

I’ve often said that I hate the word “balance,” because whenever one tries to balance privacy against something else, privacy loses.  In this case, it strikes me that privacy and fairness are being balanced against free speech, and both are losing.

Okay, now go scream at me for my view.  But seriously, as much as I defend free speech, I am not willing to sacrifice all privacy and reputation for it.

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