Content Regulation / Censorship, Privacy, Data Protection and Retention
Gazeta do Povo v. Baptista et. al.
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The UK High Court of Justice gave a judgment proscribing publication of sexually explicit images and footage of former Formula 1 motor racing chief Max Mosley in a case involving undercover exposé by News Group Newspapers of his sado-masochistic encounters with a set of prostitutes. Mosley had brought a claim for misuse of his private information in the publication of images against Google under several provisions of the Data Protection Act, 1998, requesting the Court to direct the search engine to disable access to pictures infringing on his privacy. Google sought to strike out the claim, on the basis that the order applied for was incompatible with the E-Commerce Directive which granted intermediaries legal protection for information and images retrieved by the user via a search engine. The court decided in favour of Mosley, noting that he had legal remedy which the Court was required to grant under both Data Protection Act and the E-Commerce Directive as well as the fact that his claim was sustainable as Google had the technology to block access to alleged photos and images in the same way it was able to block access to individual child pornography images. The Court, thus, allowed the claim to go to trial.
On March 28, 2008, a video footage concealed on a camera of the former Formula 1 motor racing chief Max Mosley was shared by a prostitute with a prominent media publication agency “News of the World”, having an average circulation of over 3 million copies. On March 30, 2008, images from the footage were published by the newspaper under the heading, “F1 boss has sick Nazi orgy with 5 hookers” with an inside double-page spread suggesting that Mosley organised a Nazi-themed sado-masochistic orgy. The article was also accompanied with still photographs procured from the video footage which was filmed undercover by the newspaper on a camera provided by a News of the World journalist to one of the prostitutes in the alleged sexual activities. An edited extract of the video were also shared on the website of the newspaper on March 30th and 31st, after which they were also reproduced elsewhere on the internet and viewed by millions of people.
On April 4, 2008 Mosley initiated legal proceedings against the newspaper claiming damages for breach of confidence and invasion of privacy. The High Court issued its judgment in the privacy proceedings on July 24, 2008, whereby Judge Eady declared that Mosley enjoyed a reasonable expectation of privacy concerning his sexual activities which was violated by the newspaper. The Court, therefore, awarded Mosley with compensatory damages of £60,000 as well as imposed a permanent injunction on publishers of the News of World from republishing the footage/article.
Mosley, however, brought another application before the European Court of Human Rights contesting that the UK had failed its duty to protect his privacy by not imposing on the publishers a requirement that subjects be notified before an article concerning their private life is published. The Fourth Section issued a decision on May 10, 2011 and found that UK had indeed violated its obligations under Article 8 of ECHR. The Court also noted that “the conduct of the newspaper in the applicant’s case [was] open to severe criticism” and despite his efforts to get those materials off the internet, the images and footage was still accessible on the internet.
Since persons other than News of the World were still posting the images on several websites which were accessible through search engines, Mosley brought several proceedings in various jurisdictions claiming damages and injunctive relief against Google Inc, in order to get Google to block access to photos from its search results. For instance, in France, by a judgment dated November 6, 2013, Tribunal de Grand Instance de Paris issued a global blocking order against Google. Likewise, in Germany, the Hamburg District Court also ordered Google to block access to the photos accessible using any of Google’s search engines.
On similar lines, by an application dated July 23, 2014, Mosley commenced legal proceedings claiming injunctive relief and damages against Google, Inc. as well as its subsidiary, Google UK. This claim was based on two grounds: first, for misusing personal information by publishing it (in the sense that Google directed searches to websites displaying alleged images) and second, failure to cease processing of his personal data under section 10 (i.e., right to prevent processing likely to cause damage or distress), section 13 (compensation for failure to comply with certain requirements) and section 14 (rectification, blocking, erasure and destruction) of the UK Data Protection Act, 1998 (now repealed by a subsequent version of 2018).
Justice Mitting delivered the judgment of the Queen’s Bench Division of the High Court of Justice of the UK (EWHC). The principle question in this case concerned the grant of injunctive relief against News Group Newspapers for misuse of private information in the publication of images of Mosley’s sado-masochistic encounters with a set of prostitutes.
At the outset, the Court deemed fit to discontinue the case against Google UK as a party during the course of hearings (thereby restricting its judgment to claims against Google Inc. only), whereas Mosley’s allegation concerning misuse of personal information was stayed by EWHC (albeit with the agreement of the parties). The Court thus based its decision on an analysis of the provisions of Data Protection Act of 1998 (DPA), specifically under section 10, 13 and 14 as alleged by Mosley.
Section 10 of the Act, namely the right to prevent processing likely to cause damage or distress, entitled an individual to require to cease processing of personal data on certain grounds by giving a notice in writing to a data controller. Under section 2(f) of the Act, ‘personal data’ referred to data relating to a living individual who can be identified from such data, whereas data controller was defined under section 2(d) as “the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data” [p. 4]. Section 13 granted the aggrieved individual a right to compensation from data controller for damages and section 14 prescribed power to the Court to order rectification, blocking or erasure in respect of such personal data causing suffering or damages to the aggrieved.
Exercising his right under section 10 of DPA, Mosley had served two notices (dated December 20, 2011 and June 18, 2014) requiring Google Inc. to cease processing of the images. On both occasions, Google responded negatively, contesting that (a) it was not a data controller and (b) the ‘personal data’ in question or the steps required to cease processing it were not identified by the claimant. Notably, Google Inc. had a policy to block access to individual URLs as and when they were identified by the claimants, but such was not possible in this case given new websites appeared on a regular basis hosting alleged materials. Consequently, the Court observed that this means of blocking access was ‘insufficiently effective’ to secure protection of rights under section 10 of the Act.
With respect to Google’s claim that it was not a data controller, although it was indeed the case until July, 2014 that internet service providers were not ‘controllers’ despite processing such data, the judgment of the Grand Chamber of the Court of Justice in Google Spain SL v. Agencia Espanola de Proteccion de Datos  QB 1022 marked a monumental shift in the legal position on this matter. That case unequivocally established that such operators were ‘controllers’ under section 2(d). Based on this development, the Court noted that the claimant was entitled to ask the Court to take measures if it was proved that (a) a substantial unwarranted damage was caused on account of processing of personal data by the defendant and (b) a notice was given to the defendant and no reasons were provided by the defendant to showcase that such a notice was unjustified.
While Google Inc. did not contest the notice or consider its contents unjustified, it nevertheless objected against any liability by claiming protection under Directive 2000/31/EC of the European Parliament and of the Council on 8th June 2000 (the ‘E-Commerce Directive’). In particular, Google sought protection under Article 13 and 15 of the Directive.
Article 13 afforded legal protection to internet service providers who engage in ‘caching’ of information and images, subject to certain conditions (including, specifically, the obligation on ISP not to modify images or information and to act expeditiously to remove or disable access to contested materials). The conditional exemption was, however, subject to a proviso under Article 13.2 which provided that neither the Court nor the Member States were restricted from requiring the service provider to terminate or prevent an infringement. On the other hand, Article 15 imposed a prohibition on Member States to impose a general obligation on ISPs providing services such as caching, hosting etc. to monitor the information they transmitted or stored, as well as seek facts or circumstances indicating illegal activity.
Google claimed that Articles 13 and 15 of the E-Commerce Directive excluded its legal liability for information and images retrieved by the user via a search engine. By quoting a Court of Appeal’s decision in British Telecom plc and The Culture Secretary  3 CMLR 5, Google also claimed that the effect of Article 12 (specifically the ‘mere conduit’ provision) was to exclude liability for infringement of copyright. In rebutting these assertions, Mosley argued that contrary to Google’s claim, it was not entitled to legal protection as the E-Commerce Directive as processing of personal data was an exclusive domain of the Data Protection Act, 1998. On other fronts, he also contended that even in the circumstance of the application of the E-Commerce Directive to this case, Google had modified the images (in returning ‘thumbnails’ of the images) and was, thus, beyond the scope of protection of Article 13.1. Moreover, the case directly invoked proviso to Article 13.2 and permitted the Court to provide him legal remedy for infringement of his data rights.
On Mosley’s first claim based on exclusive application of DPA, the Court noted that provisions of E-Commerce Directive did not apply where questions relating to information society services covered under the Data Protection Directive were concerned [arriving at this conclusion based on a combined reading of Recital 14 and Article 1.5(b) of the E-Commerce Directive]. However, it also gave regard to Italian Court of Cassation judgment in Milan Public Prosecutor’s Office v Drummond (2013) where the Court opined that both Directives must be read harmoniously and given full effect to, where possible. At the end, without deciding on this issue (though leaning towards the view in Milan case) and irrespective of the legal application of both laws, EWHC noted that the claimant nevertheless had a legal remedy under both laws which the Court was required to grant.
On the final issue concerning application of Article 15 of the E-Commerce Directive (on prohibition on general monitoring), Google had claimed that the Directive prohibited the making of the orders sought by Mosley because what the claimant required amounted to ‘general monitoring’ which was prohibited. This was rejected by the Court – by citing L’Oreal SA and eBay International AG  Bus LR 1369, the Court concluded that national courts were able to order the operator of an online marketplace to take measures which contribute to protection of IPR rights of the claimants, and “no lesser standard is to be expected in upholding the rights of individuals to have sensitive personal information lawfully processed” [p. 11]. While the evidence on record did not permit the Court to make an assessment whether the grant of remedy involved monitoring in breach of Article 15 (1) of the E-Commerce Directive, it however declared that the technology was available with Google to block access to individual images (as it had done with child sexual abuse imagery) and therefore, Mosley had a legitimate ground to succeed. Accordingly, the Court allowed the case to proceed to trial.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
While regulations globally have long recognised that free speech is justifiably limited to prevent crime or defamation, its application to intermediaries and determination of intermediary liability has been subject to increasing debate over time. In this regard, Courts have struggled often to make fair assessments on grounds of necessity and proportionality.
Extra-territorial global content restrictions, such as those imposed in this case, serve to limit expression interests of large intermediaries like Google in limited cases involving reputational harm. Attempting to strike a balance between free speech and private interests has been, however, always trickier for the Courts – this case served as a part of a broader trend to add weight to the legitimate concerns around free speech interests on global platforms, as well as internet’s function as a global public medium.
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