Defamation / Reputation, Political Expression
Hoffer and Annen v Germany
Closed Contracts Expression
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Defamation and right to privacy are important individual rights that must be balanced against the public’s right to freedom of speech and information. In this case, the court found that Google’s continued publication of defamatory statements about the plaintiff intruded on the plaintiff’s right to privacy which outweighed the public right to freedom of information because the plaintiff was harmed and Google had the ability to develop software which would prevent the continued re-publication of the defamatory information.
Max Mosley, a citizen of the United Kingdom, president of Formula One, and son of Sir Oswald Mosley, a leader in the British Union of Fascists party, was involved in a sex scandal in 2008. Mosley had allegedly hired five prostitutes and, dressed in “Nazi uniforms,” engaged in multiple acts of sadomasochism. The events were recorded on video and stills of the video were leaked to the press and eventually the public. Many of these images were available as thumbnails when an Internet user searched any number of terms involving Mosley’s name on Google images.
In 2010, Mosley’s attorneys wrote to Google and advised the search engine that these images violated Mosley’s privacy rights. As a result, Google voluntarily deleted 29 of the images related to the scandal. However, in a response to this action Mosley wanted all of the alleged 192,000 search results related to the scandal removed. In response, Google removed some, but not all, of the embarrassing photographs. However, after four more years of back and forth between Mosley and Google, Google did not fully comply with Mosley’s request to have the images removed and he filed suit in multiple countries, including Germany.
The court’s lengthy analysis noted that while Google claimed its freedom of speech rights were at stake, in fact, the company was not entitled to the full protections afforded to freedom of speech since the publication of the images was commercial speech. Additionally, the court rejected Google’s claim that removing or filtering the images would be impossible since it employed both electronic and manual means of filtering photographs of child pornography from its Google Images website.
The court framed its analysis with this conclusion: Google’s publication of the scandal images clearly violated Mosley’s privacy rights, and its current steps to protect those rights, including the “notice and takedown” Mosley’s attorneys had attempted to utilize for four years, were insufficient. Thus, since Google knew that the images it linked to were defamatory, it had a duty to take all reasonable step to prevent future defamation. Such steps could include developing software that would “delete and detect or block such content.”
The court set forth a two-part analysis, and found Mosley meet the requirements of this test. First, Mosley proved that the images injured him since they damaged his reputation as the leader of an international racing organization. Second, even though such software may not have been in use or even available at the time of this lawsuit, Mosley proved that Google could, in fact, develop such software. The court noted that the use of this kind of software would not violate European or German national law. Additionally, the court found that should software not be developed, the risk of future harm occurring to Mosley through the publication of these images was highly probable.
In its judgment, the court ordered Google to refrain from spreading defamatory images of Mosley in Germany on all pages on the “www.google.de” domain. Violation of this order would lead to administrative penalties for each and every published picture that impinged upon Mosley’s privacy rights.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Hamburg District Court’s decision contracted expression by imposing upon Google an enormous duty to regulate the content of the Internet. Google is now forced to constantly monitor the search results related to Max Mosley or face significant administrative and monetary penalties.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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