French Court: Claim of First Amendment Rights in Search Results Inconsistent with "Neutral and Passive Role" as Host

On November 6, the Paris Tribunal de Grande Instance (TGI) ordered Google and Google France to withdraw and stop displaying in their search engine results, for a period of five years, nine pictures of British citizen Max Mosley. By doing so, the TGI refused to consider Google as a mere Internet intermediary that provides hosting and/or caching functions. And although the TGI stopped just short from explicitly calling Google an editor, it required that Google build a filtering system to automatically block the pictures at stake and thus provide Mosley with obscurity for his actions.   (The decision is available here in French, with a link to a Google Translate English version.)

Mosley's Initial Lawsuits

Mosley is a former President of the Fédération Internationale de l'Automobile, which manages the Formula One racing championship. He is also the son of Oswald Mosley, who founded the British Union of Fascists in the 1930’s. 

In March 2008, the now defunct UK tabloid News of the World published images of Mosley taken surreptitiously during a sexual party, calling it a "sick Nazi orgy.” The tabloid also posted on its site an edited version of the video from which the images had been extracted, but removed it voluntarily after receiving a letter from Mosley’s solicitors.

Mosley sued News of the World in the UK for invasion of privacy, also claiming that the sexual party did not have a Nazi theme, and sought an injunction to restrain the tabloid from making the video available.  The High Court found that publishing these images breached Mosley’s right to privacy.

Unsatisfied, Mosley took his case to the European Court of Human Rights (ECHR), claiming that UK law should have had a requirement that he be notified prior to the publication of the article, so he could have applied for an injunction to prevent its original publication. He lost his case there. Mosley also sued the tabloid in France, which has strict laws protecting privacy (including the privacy of one’s image (droit à l’image)).  In November 2011, the criminal court of Paris found News of the World criminally responsible for having published pictures Mosley taken without consent while he was in a private place.

The Suit against Google

Even though both UK and French courts had ruled that these pictures infringed on Mosley’s privacy, they were still regularly republished by various websites. Mosley requested that Google and Google France remove the images permanently from their search engine results; when they did not, he sued both entities in France seeking a permanent injunction against their publication.

No Breach of the European Convention of Human Rights 

Google argued that preventing the images from appearing in its search results permanently, as requested by Mosley, would not be a proportionate measure vis-à-vis its fundamental right to communicate information.

Under article 10 of the European Convention of Human Rights, an interference with freedom of expression is justified if it is prescribed by law, pursues a legitimate aim and is necessary in a democratic society.

The TGI noted that preventing the images from being published again, was a legitimate aim because it aimed at protecting Mosley’s privacy. Also, it found that this measure was “necessary in a democratic society” as it was manifestly illegal to publish the photos, and because courts in two European States had found them to be illegal. The TGI also carefully noted that commenting about the images and referencing the comments about them was not forbidden, finding no breach of the Convention.

No Over-Filtering

Google also argued that the injunction demanded by Mosley would compel it to filter search results, a result it claimed was prohibited under the European Court of Justice’s 2011 Sabam case. In that case, the European Court of Justice held that a national court may not issue an injunction directing an ISP to put in place a filtering system in order to prevent intellectual property rights infringement.

The TGI distinguished the Sabam case by reasoning that it was about a rather complex filtering system, which would have required the ISP to constantly filter all traffic P2P, and identify illegal files to protect not only existing works, but also future works. In contrast, the TGI held that the nine Mosley images were “precisely identified and their illegality [has] been recognized by courts.”

The TG