So, the Duke and Duchess of Cambridge have been successful in obtaining an injunction against Closer magazine from the Tribunal de Grande Instance de Nanterre, preventing the magazine from re-publishing or selling topless pictures of the Duchess. Is that the end of the story? Far from it, the story will continue for ever thanks to the internet.
So what can she do to limit these internet publications? Those of us who advise in this field know from experience it can be a thankless and near impossible task where images are disseminated so widely and the interest so international.
A straightforward Google search reveals the images easily. Why is this? Because Google has the most powerful and technologically advanced software out there and billions of pages worth of data stored on its servers. Moreover if one uses the ‘Google Images’ search engine Google will extract the image results and publish them in a separate thumbnail format on a Google branded page.
To date Google has been found not to be a ‘publisher’ of its search results for the purposes of UK legal proceedings (see here and here) as a result of the complicated search process being automated. The Court of Appeal will soon hear the contrary arguments.
Of course, lawyers can complain directly to the offending websites. Identifying all of the individual websites in question can take many hours and the images will be copied onto new sites again and again. First the images in question have to be identified on each individual website. Then you need to find the registered owner of that particular website. If this is available from a simple WHOIS search you can write to them to seek the pictures removal. They may or may not comply. If the website owner is not identifiable you may need to apply for a Norwich Pharmacal order to identify the registered owner. In all situations, if the website refuses to remove the offending images a decision will then need to be taken whether or not to sue. In this case all the common issues when dealing with foreign websites relating to jurisdiction and enforcement come into play.
The fact is, going back to the very first step; it is most likely that you will have found the offending URLs by using Google. As a result, by preventing the relevant URL from being returned in Google’s search results you will be denying a large amount of traffic (if not all) to the website especially if you are, for example, talking about an obscure blog in Peru whose website address you are unlikely to have to hand.
In which case you may say, why shouldn’t the Duchess be able to ask Google to assist her in identifying and blocking the images, publication of which has been held to be unlawful in a French Court, would no doubt be held unlawful in England and Wales, and are obviously hugely intrusive to the targets? The answer to this question is likely to be because it would be a complete waste of time.
Google’s position is relatively straightforward. Google acknowledges that it can find the images in question (obviously). It further acknowledges that it can block the relevant URL from its search results when notified to do so (although often a Court Order is required). It does not however admit that it can link these processes together and pro-actively block individual images from its search results.
This is a multi-billion dollar company with the most highly regarded technicians saying it cannot marry two existing technologies. This position is all the more unrealistic when you consider we are talking about a handful of readily identifiable images i.e. those published in Closer magazine, and the pre-existing picture finger printing technology are already deployed by Google Images. Why can’t Google simply upload the offending images, fingerprint them, identify the URLs carrying them and block those URLs from its future search results?
Google goes further than saying it can’t do it, by saying that even if it could marry these technologies it has decided for policy reasons it won’t do it. Google says it will not ‘police the internet’. Some may sympathise with this policy but this sympathy wears a little thin when considering Google’s willingness in the face of lobbying in California to do exactly that for rights holders in music, film and television.
Google also say that it does offer tools on its website to allow users to remove unlawful content (albeit hidden away unless you know where to find them). Whilst this is correct it requires the individual to spend the time identifying all of the relevant URLs where the offending material is available. When you are talking about a story concerning pictures of the Royal family this could well involve many thousands of different URLs. To identify each one of these and notify it to Google could literally take years with previously unknown URLs replacing those which have previously been removed.
This approach was severely criticised in the report of the Joint Committee on Privacy and Injunctions which stated in response to Google’s evidence:
“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.
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. 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.”
Despite the criticism levelled at it, Google has to date refused to budge. It remains to be seen whether legislation will follow.
The Information Commissioner’s Office (“ICO”) has also adopted a head in the sand attitude. The ICO has stated that it does not consider Google to be a data controller for the purposes of the Data Protection Act 1998 on the assumption that it has no influence in the way the data (i.e. the pictures) is processed by the third party websites which host it. Surely however this ignores the way in which Google itself processed the images and stores them on its servers?
The Spanish National High Court has recently referred a similar issue to the European Court of Justice so that it can make a ruling on whether or not Google should be compelled to remove sensitive data from its search engines even when it is not responsible for producing the original content.
Having defied the Parliamentary Joint Committee on Privacy and Injunctions it is unlikely that Google will change its policy for the Duchess of Cambridge. How many more of these cases will there have to be for the judiciary and legislators to wake up to the need to make Google and other search engines accept responsibility for their product?
Tim Lowles is an Associate in the IP and Reputation Management team at Collyer Bristow.
It’s an interesting idea. But, of course, Google doesn’t have a monopoly over search engines. If Google blocked the images, people might turn to Yahoo or Bing or a host of other possibilities. Google’s fear is, perhaps, that once people switch, they might not switch back.
To take this idea forward, there would need to be an agreement by all the search engines to block such material. But that might just create a business oportunity for a new search engine which promises to uncover all the sites that the other search engines won’t tell you about!
At some point, the internet community is probably going to have to re-think the oft-stated sentiment that you can’t regulate the internet. But I don’t think we’re there yet …