Google fight over Mosley orgy shows censorship creep in Europe

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A rich, powerful man won a series of court victories in France and Germany that arguably helped pave the way for Europe’s controversial “right to be forgotten”, which has helped people erase history by scrubbing search engines. Now, that man is pushing a U.K. court to go a step further — and, unfortunately, it sounds like the court will agree.

As the BBC explains, Max Mosley was in the High Court this week demanding that Google be held accountable for images that show him romping with five German-speaking prostitutes in a prolonged S&M orgy in a posh London apartment.

Mosley, who is the former head of F1 racing and the son of a prominent U.K. fascist, already has the right to ask Google to remove specific search results that link to the pictures or videos in question. What he is seeking now is for the court to designate Google as a publisher in its own right, which would make it responsible for finding and deleting any other links that might appear in the future.

The distinction is crucial because a court ruling in Mosley’s favor would transform Google and other search engines from a passive directory into an active censor. It is the difference between asking a newsstand to remove a certain magazine that has an offensive image, versus making the newsstand responsible for ensuring the image never appears in any other publication it sells in the future.

To support his position, Mosley’s lawyers are pointing to a court ruling against the defunct tabloid News of the World, which was forced to pay Mosley £60,000 for defamation and violating his privacy. They say Google is similarly liable for violating a U.K. law known as the Data Protection Act.

Google’s lawyer, meanwhile, is asking the court to throw out the case on two grounds: that Mosley no longer has a privacy right in the images since they have been so widely disseminated, and because the search engine is not a publisher in the first place. As the FT reports:

“Max Mosley remains in the public eye as a campaigner for privacy rights and this has never been forgotten or receded into the past,” [the lawyer] told the court, adding that in legal terms Google was not a publisher of the images.

While the case would be quickly thrown out in a North American court, other news reports suggest Mosley’s argument gained traction with the judge. The Mirror, for instance, quotes the judge in the case as saying “damages may simply not be available” to Mosley, but that an injunction is “much less problematic.”

This distinction will be cold comfort for Google since Mosley, if the judge issues an injunction, will be in a position to seek damages or a contempt of court charge if Google fails to comply with an order not to display or link to the images.

In the bigger picture, Mosley’s latest gambit appears likely to cause Europe’s creeping cloak of internet censorship to expand further. And a U.K. ruling in his favor will also bring about a further fracturing of the internet as a whole, as North Americans see one version of the web — including the Mosley video — while Europeans see a different one punched full of holes.

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