Out-Law News | 27 Mar 2012 | 3:31 pm | 5 min. read
The Joint Committee on Privacy and Injunctions said "totally unconvincing" evidence provided by a Google lawyer in defending the company's approach to removing pictures of former motor racing boss Max Mosley had convinced it that search engines had to take more responsibility in ensuring courts' privacy injunctions are observed online.
"Where an individual has obtained a clear court order that certain material infringes their privacy and so should not be published we do not find it acceptable that he or she should have to return to court repeatedly in order to remove the same material from internet searches," the committee said in its report into privacy and injunctions.
"Google acknowledged that it was possible to develop the technology proactively to monitor websites for such material in order that the material does not appear in the results of searches. We find their objections in principle to developing such technology totally unconvincing," it said. "Google and other search engines should take steps to ensure that their websites are not used as vehicles to breach the law and should actively develop and use such technology. We recommend that if legislation is necessary to require them to do so it should be introduced."
In 2008 the UK High Court ruled that the News of the World had violated Mosley's right to privacy when it published a story and video detailing an orgy in which Mosley took part. The Court ordered the paper to pay Mosley £60,000 in damages. At the time the judge said the paper's allegation that Mosley's sex life had Nazi undertones was unproven and that the article was unjustified. Mosley is the son of Oswald Mosley, the leader of the British fascists in the 1930s and 1940s.
Mosley is taking legal action against Google over copies of the privacy-intrusive material that he says appear in the company's search results.
In December Mosley told the Joint Committee on Privacy and Injunctions that although Google acted to stop specific content appearing in search results when he had flagged the links up, it did not prevent further copies appearing elsewhere on the web. He said search engines and other service providers should have to act to prevent the material surfacing in results.
Earlier this year Daphne Keller, Google's legal director and associate general counsel, said that whilst it was possible for technology to be developed to prevent copies of certain photos or text from appearing in search results it was a "bad idea" for it to be used.
"We do not have a mechanism that finds duplicates of pictures or text and makes them disappear from our web search results," Keller said. "As a policy matter, I do not think that would be a good idea, simply because an algorithm or a computer programme that tried to do something like that would not have the ability that a judge does or any person does to see the context, to see if a particular phrase is actually appearing in a news report or in political commentary."
"Ultimately the determination of which web pages violate the law is something for a court, for a person to make, rather than for an algorithm to make potentially erroneous conclusions about what should come down," Keller said, according to a report by the Guardian at the time.
In its published report the Joint Committee on Privacy and Injunctions also said courts had to take a more "proactive" approach to encourage individuals seeking privacy injunctions to notify "internet content platforms, such as Twitter and Facebook" of their intentions. Those companies should also do more to prevent invasive material appearing online, the committee said.
"We recommend that, when granting an injunction, courts should be proactive in directing the claimant to serve notice on internet content platforms, such as Twitter and Facebook," it said. "Beyond that, claimants in privacy cases should make full use of notice and take-down procedures operated by responsible internet service and social media providers, who should also seek to disseminate best practice and discourage illegality amongst users and other providers."
The committee said that the UK's top legal advisor the Attorney General should be "more willing" to bring contempt of court proceedings against individuals who breach the terms of court orders when publishing material online. "The threshold for him intervening should be lower," it said. "Such action would provide a strong deterrent against future such breaches."
Defining 'privacy' and 'public interest' in new legislation would not help to clarify the law because both concepts evolve over time, the committee said. "The current approach, where judges balance the evidence and make a judgment on a case-by-case basis, provides the best mechanism for balancing [individuals' right to privacy against the right to free speech]," it said.
The committee called for any "reformed media regulator" to provide individuals with an "alternative route" to court action that is "cost free" in order to "prevent and redress breaches of privacy" by the media.
Plans to reform the regulation of the press were announced by the Government last year following the phone hacking scandal at the now-defunct News of the World newspaper. An independent inquiry into the culture, practices and ethics is currently ongoing and it is widely expected that it will recommend an overhaul of the existing self-regulatory regime currently overseen by the Press Complaints Commission (PCC).
The Joint Committee on Privacy and Injunctions said all "major news publishers, including online publishers" should come under the "jurisdiction" of a new regulator. It should be "essential" that all newspaper publishers are members of the new regime.
News publishers should face "significant penalties" for not being members of the new regime. Publishers not signed up to the framework should lose out in advertising revenues, the committee recommended.
"Major advertisers should require membership as a condition of advertising in news publications, including on blogs," it said.
The new "code of practice" that the regulator would be required to enforce should compel journalists to "notify the subject of articles that may constitute an intrusion into privacy prior to publication, unless there are compelling reasons not to," the committee said. It rejected the idea that this prior notification requirement should be written into statute.
The European Court of Human Rights has previously said that forcing the press to tell people before publishing stories could have had a "chilling effect" on the right to freedom of expression because it would give the subjects of stories the chance to obtain a court order that publication be stopped.
"If a complaint is made to the new regulator about an individual's right to privacy having been infringed and that individual was not given prior notification of the story, the publication should be required to explain why they did not do so," the committee said. "If it was because it was in the public interest not to, the publication should state how, and with whom, the public interest was established at the time."
"Courts should take account of any unjustified failure to pre-notify when assessing damages in any subsequent proceedings for breach of [privacy rights]," the committee said.
The new regulator should be "strong" and "independent" in order to "balance the competing rights of privacy and freedom of expression". The PCC was "not equipped" to do that, the committee said.
The reformed regulator should have extra sanctions not currently available to the PCC and the Government should be prepared to write new laws requiring Ofcom or another body to provide "statutory oversight" of the regime if the new regulator does not command "public confidence," it said.
"The new regulator should be demonstrably independent of the industry and of government," the committee said. "It should be cost-free to complainants and should have access to a wider range of sanctions, including the power to fine and more power to require apologies to be published."
"Should the industry fail to establish an independent regulator which commands public confidence, the Government should seriously consider establishing some form of statutory oversight. This could involve giving Ofcom or another body overall statutory responsibility for press regulation, the day-to-day running of which it could then devolve to a self-regulatory body," the committee said.