Man versus Machine Max Mosley's Battle against Google Hits the Courts
Former Formula One head Max Mosley's name is synonymous with scandal thanks to a British tabloid and, years later, Google. Compromising images can still be found using the search engine, and Mosley has launched a broad legal offensive in Europe to force Google to filter out the photos. It could become a landmark digital-rights case.
Once a day, Max Mosley types his name into Google. Perhaps somewhere in the world an article has been written about him. Or perhaps, once again, the search engine will turn up a photograph of Mosley half naked, surrounded by young women and whips. Britain's High Court ruled years ago that these pictures were taken illegally, but they continue to be posted on the Internet. More often than not, they land on websites that no one would ever find -- if it weren't for Google, that giant search engine that does not forget.
Mosley, now 72, was president of FIA, the governing body for world motor sport, until three years ago, a position which put him in charge of Formula One racing. He was the one who made the auto racing world implement safety precautions after Ayrton Senna's fatal accident in 1994.
But those things no longer count. Since March 30, 2008, Mosley is known primarily as the FIA president accused of being caught at an S&M party with five women in uniforms. His life story has been reduced to this one single scandal.
The British tabloid News of the World filmed the private party with a hidden camera. A reporter had placed the device on the lapel of one of the women at the party, and instructed her to get Mosley into compromising poses. "When you get him to do the Hitler salute, you need to be two and a half to three meters away, then you'll get him," the reporter allegedly said.
The supposed "Nazi sex orgy" didn't just find its way into the newspaper. Journalists at Rupert Murdoch's now-defunct Sunday tabloid also uploaded the video to the Internet, where within minutes millions of people around the world were clicking their way through the most private parts Mosley's life.
Mosley has long since won his battle against the News of the World and other media. The High Court ruled that the Nazi accusations were invented, and ordered the newspaper to pay Mosley 60,000 pounds (75,500 or $94,800) for the breach of his privacy -- the highest compensation for such an offence in British media history. But what good is a ruling from the analog world in the digital one? What good is a triumph over an opponent such as Murdoch in a media world ruled by algorithms of the sort used by Google?
Mosley has successfully sued hundreds of website operators in dozens of countries, making them delete the pictures, but it's a Sisyphean task. Each time Mosley's lawyers find one of the pictures in Google's search results, they start all over again: They search for the person operating the website, who is often impossible to locate. They sue, if possible; they present Google with the court rulings to make the corporation delete the pictures from its search results. Or they hope for the company's understanding.
Mosley is believed to have spent nearly 1 million over the last four years to enforce his right to privacy on the Internet. Yet no sooner is one picture blocked than another pops up elsewhere. "Without Google, no one would even find these sites," Mosley argues. The corporation displays the pictures and directs users to the original pages, Mosley says, although it knows all of these photographs were taken illegally.
It seems, he says, as if the same search engine that can find anything online, and is capable of saving each individual query from anywhere in the world in order to optimize its search function, has no memory of its own. Yet Mosley believes it would be easy for the company to filter out the stamp-sized preview images completely, and not to show them in its search results at all. But Google refuses to do so.
Now Mosley is suing the company in Germany and in other European countries. A ruling here, Mosley hopes, would have a wider effect and could make Google more cautious in other countries as well. The results of the cases in Europe will determine whether Mosley takes his suit all the way to California, where Google has its headquarters. The German case is scheduled to begin at Hamburg's district court in September.
Mosley versus Google -- it is more than just a squabble between a celebrity and a powerful corporation. It's a battle of man against machine, and has the potential to be a landmark case, addressing nothing less than the fundamental conflicts of the digital world: Who controls our rights online: courts or global corporations such as Google?
Where does the protection of basic rights end and censorship begin? Anyone who fights back as Mosley is doing easily ends up looking hopelessly old-fashioned, like someone who hasn't caught on that the Internet operates by different rules.
This fall the European Commission plans to update European Union data protection laws to help ensure the "right to be forgotten" online. The plan would return control over personal data to individuals, allowing them to delete at least information that they themselves originally put online.
It's common knowledge by now that the Internet never forgets, and that it doesn't easily give up anything it's gotten into its grasp. From embarrassing party photos such as those from Prince Harry's recent strip party in Las Vegas, to videos posted by vengeful exes on YouTube, thousands of people each year find themselves involuntarily exposed online. Often this is a product of their own carelessness, but sometimes, as in Mosley's case, they themselves have done nothing to cause it.
"It's About Principle"
An afternoon two weeks ago finds Max Mosley in the office of his Hamburg-based lawyer, Tanja Irion. He's just flown back from vacation in the south of France, an elegant man in a light gray suit, his white shirt slightly unbuttoned, his hair a silvery gray. He apologizes, saying that he needs those around him to speak up because he's a bit hard of hearing.
Mosley is in a good mood, laughing often. Still, the scandal deeply shook his family and caused serious trouble in his marriage. His elder son Alexander, who was suffering from depression, died of a drug overdose a year later. "These are things I'll never be free of," Mosley says. "They never go away." That would be true even if every single photo were deleted. And to do that, Mosley would need to sue successfully in every country on the planet, a futile undertaking.
He could have left it at that, kept a low profile and hoped that interest would eventually fade away. Instead, his current campaign is rekindling the old scandal. "But it's not about me anymore, it's about the principle," Mosley says. "I have time and money. And if you have both of those things, you're obligated to fight, so the same thing won't happen to others."
But of course it's also about him. This is the man who once set the rules for Formula One, creating budget limits despite the protests of the large teams and introducing crash tests. He learned that new technology calls for new rules, and that it was possible for him to push those rules through. He's unwilling to accept that anything could be immutable.
Motor sports have always provided Mosley with a refuge from his own family history. His father was the leader of the British Union of Fascists and Mosley's mother knew Adolf Hitler. Max Mosley says his life has been "a constant attempt to escape the family name." The sex scandal negated all those efforts, linking Mosley himself to Nazi history.
He says he hopes, though, that the name Mosley will one day stand less for scandal and more "for my work for personal rights."
New Life Purpose
The fight against Google is Mosley's new purpose in life. He does hardly anything else these days, spending his time on the telephone and traveling with his lawyers. Mosley himself worked as a lawyer prior to his Formula One career, and when his current legal battle began, he went to Google's headquarters in Mountain View, California, to speak with one of the corporation's top lawyers.
It was a clash of two opposing worldviews. Mosley says he told the Google lawyer that what the company was doing was wrong, and what's more, that they knew it was. He says the lawyer answered that what Mosley wanted couldn't be done, out of principle. Mosley informed the man that he would not give in, and that it would be a long and hard battle.
Google doesn't deny that the Mosley photographs are illegal. The company says that upon request it has deleted hundreds of pages containing the photos from its search index. The search engine's website receives millions of deletion requests every month, and Google says it complies with the requests in around 90 percent of cases.
But Mosley wants more than that. He doesn't want to have to point out the pictures every time; he wants Google to filter them out of its search results in the first place.
"We don't have a mechanism that can find duplicates of pictures or duplicates of text and make them disappear from our web search," said Daphne Keller, Google's legal director, when she was called to testify before a British fact-finding committee this January. She added, "And as a policy matter I don't think that would be a good idea." Algorithms and computer programs are not judges, she said, and Google doesn't want to "monitor" the Internet -- nor is it legally obligated to do so. The corporation doesn't want to be made the police of the online world.
At Google's Germany headquarters, Mosley's demands are seen as lunacy. Where would it lead, people here ask, if search engines were suddenly held responsible for making sure illegal pictures by third parties disappear entirely from their indexes? There is considerable concern that the Mosley case will open a veritable Pandora's box.
The company dreads having to perform that constant balancing act: What content is still legal in what context, and in what context is it not? What happens if legal content is unintentionally filtered out? Would Google be required to comply with legal rulings from countries such as Russia or China?
Google doesn't think much of the argument that it should be required to do this just because it has long filtered content in other situations, for example in cases of child pornography. The legal situation in those cases is far more clearly defined, the company says.
What Google Wants
As logical as Google's principles sound, the corporation hasn't shied away from employing absurd arguments in its battle with Mosley. Lawyers at the firm Taylor Wessing, which Google hired to handle the case, write that in some of the photographs, as Mosley's lawyer specified in her lawsuit against Google, there is no breach of Mosley's personal rights, because he can't be clearly recognized in the image. The lawyers also point out that in one picture labeled with Mosley's name, his first name is not included, and "a search query in the telephone books of the United Kingdom, the United States and Australia reveals that many hundreds of Mosleys live in those countries."
It's arguments such as these that strengthen Mosley's conviction that Google believes it "can create its own laws." He has limited patience for the idea that the corporation refuses to monitor the Internet out of principle. "No one is asking Google to comply with the demands of African dictators," Mosley says, but when it's a verdict from a Western democracy? What reason is there then, he asks, to continue to show the pictures -- other than commercial reasons?
"Technically speaking there's no reason to refuse; it's only a matter of what Google wants or doesn't want," says Viktor Mayer-Schönberger, a professor of Internet governance and regulation at Oxford University. The 46-year-old Austrian, slim with wire-frame glasses, was previously a professor at Harvard for 10 years. He advises governments and companies, and has written a book titled "Delete: The Virtue of Forgetting in the Digital Age."
Mosley's lawyer Tanja Irion asked Mayer-Schönberger to provide an expert opinion as to whether it would be technically possible and reasonable to filter images. Irion says it wasn't easy to find an expert willing to testify in the case against Google. Even Mayer-Schönberger admits that he hesitated briefly. He has friends who work for Google, some as managers, and he himself has already given a lecture at the new Google-funded Institute for Internet and Society, in Berlin.
But Mayer-Schönberger's expert opinion is clear. All the technological features that the company uses to update or delete entries in its index, he says, are suited for the installation of a filter. Furthermore, Mayer-Schönberger doesn't believe the company should barricade itself behind an argument of freedom of opinion. He finds it absurd that the same company that holds such control over access to the Internet should base its arguments on not wanting to be the one to control the Internet. "With great power comes great responsibility," Mayer-Schönberger believes.
The British parliament also has its doubts about Google's arguments. Prime Minister David Cameron created a committee with members from both the upper and lower houses of parliament to address shortcomings in personal rights in the UK. One of the witnesses the committee asked to speak was Keller, Google's legal director.
The committee reached a harsh conclusion after hearing this testimony: Google's objections to filtering images were "absolutely not convincing." Search engines, the committee determined, must make sure their websites are not "used as a medium for breaking the law."
Mosley seems confident of victory. "There will and must be rules at some point, and it will happen even if I drop dead tomorrow," he says. "But I'm fighting for it to happen sooner rather than later."
Translated from the German by Ella Ornstein