So Max Mosley has done a deal with Google in respect of his claim that Google had breached his rights under the DPA 1998 by refusing to block certain images and videos accessible via the Google search engine (see this FT article which suggests that the settlement also applies to claims brought by Mr Mosley in Germany and France). The settlement of the claim, which follows on from Google’s failed strike out application (discussed further below), leaves unanswered a number of really important questions concerning the application of data protection rights in the online world. Not least, the settlement leaves open the question of the extent to which the so-called ‘right to be forgotten’ can operate so as to force internet search engines, not only to de-index individual URLs on request, but also to block access to the offending data globally (i.e. as ISEs already do, for example, where images of child pornography are identified).
This is an important issue for those data subjects who garner significant public attention within the online environment, as was the case with Mr Mosley. The difficulty for such individuals is that online stories or comments about them can proliferate on the internet at such a rate that they cannot practicably achieve the online amnesia they crave. No sooner have they requested that the relevant internet search engine remove a number of privacy-invasive links, than the story has sprung up in a raft of other different locations on the net, with the result that the individual is effectively left trying to capture lightening in a bottle. This raises the question as to whether a right to be forgotten mechanism which is limited to de-indexing only specific those URL’s identified by the data subject is fit for purpose in terms of achieving the outcomes envisaged by the CJEU in Google Spain. Put shortly, if the ISE is the lightening conductor for privacy intrusive data, can it properly be required to stop the lightening at its source and block all access to the data in question? Is this the way in which the right to be forgotten ultimately cashes out in the online world?
Which takes us on to the defences which Google sought to run in the Mosley case because, certainly in the context of the strike out application, Google was not seeking to argue that data in issue (images and video of Mr Mosley engaging in private sexual activity) was not private or that its online dissemination did not cause substantial damage or substantial distress to Mr Mosley for the purposes of s. 10. Nor did Google seek to dispute that the damage or distress suffered by Mr Mosley was ‘unwarranted’ for the purposes of s. 10(1). Instead, its entire case in the context of the strike out was mounted on the basis that it was shielded from all liability under the DPA by virtue of the protections afforded to intermediary ‘internet society services’ (ISSs) under Part IV of the E-Commerce Directive (Directive 2000/31/EC).
For the uninitiated, Part IV of the E-Commerce Directive is designed to afford protections to intermediary ISSs which are genuine data intermediaries in the sense that they merely transmit, cache (i.e. store) or host data generated by others. The idea which lies behind Part IV is that the development of electronic commerce within the information society, one of the key objectives of the E-Commerce Directive (see recital ), would be frustrated if entities acting essentially as online data messengers could too readily get shot by third party claimants. Thus, we see:
- in Article 12 a limitation on liability where the ISS is acting as a mere conduit;
- in Article 13 a limitation on liability where the ISS is merely caching the data;
- in Article 14 a limitation on liability where the ISS is merely hosting the data (this was the provision invoked by Facebook in CG v Facebook, as to which see my post here) and, finally,
- in Article 15 a specific exclusion of any general obligation on the part of the ISS to monitor content falling within the scope of Articles 12, 13 or 14.
Google’s case on the strike out was that it was not liable in respect of Mr Mosley’s claim under s. 10 DPA on the basis that: (a) it was merely caching the data in issue (thus Article 13 of the E-Commerce Directive was engaged) and, in any event (b) the order being sought by Mr Mosley would conflict with the requirement of Article 15 of the E-Commerce Directive, as it would result in Google having to engage in general monitoring of cached content.
Mitting J considered both of these arguments in the context of Google’s strike out application (see his judgment here). So far as Google’s case on Article 13 was concerned, Mitting J clearly took the view that, where an individual’s data protection rights are being infringed by virtue of an ISS’s continued processing of privacy-invasive data, there is nothing in Article 13 of the E-Commerce Directive which purports to limit the ISS’s liability to cease processing that data; quite the contrary Article 13(2) specifically leaves the door open to a cease processing order being made in these circumstances (see in particular ). This conclusion dovetailed with Mitting J’s more general (albeit provisional) conclusion that the Data Protection Directive and the E-Commerce Directive were intended to work ‘in harmony’ with one another (see -46]). On the Article 15 defence, Mitting J was clearly sceptical about Google’s argument that the order being sought by Mr Mosley would result in the kind of general monitoring which was ostensibly prohibited by Article 15 . However, he accepted that this was an issue which would have to be decided by the trial judge.
Of course, in light of the recent settlement, it is clear that that issues concerning Google’s Article 15 defence are now unfortunately not going to be decided by the trial judge. Which leaves us all pondering in particular the following important questions:
- First, where right to be forgotten claims are formulated as claims to have data blocked by the relevant ISE, will such claims in practice effectively require a form of general monitoring by the ISE?
- Second, if they do require a form of general monitoring, does that mean that the claims must fail by reference to Article 15 of the E-Commerce Directive or does Article 15 itself have to fall silent in the face of the imperatives of the data protection legislation? (Mitting J made clear in his judgment he was not expressing a view on this issue)
- Third, what about claims for compensation brought against an ISE which refuses to block data? Do E-Commerce principles afforded ISEs a refuge against such claims? (Notably, Mitting J had stayed Mr Mosley’s compensation claim pending the outcome in Vidal-Hall so he did not address this issue).
It is perhaps worth pointing out here that no reference was made in Mitting J’s judgment to the EU Charter of Fundamental Rights (presumably because Charter rights were not specifically relied on in argument). Obviously in the post-Vidal-Hall world, Charter rights - including not least Article 8 (concerning the protection of personal data) – are bound to play a dominating role in discussions concerning the relationship between the E-Commerce Directive and data protection rights. Which all tends to suggest that this is an area which remains rich in litigation potential.
Finally, it should be pointed out that as at today’s date the various images which Mr Mosley was seeking suppress all appear still to be available online via Google. It remains to be seen whether in time these images will in fact quietly sink into the soup of online forgetfulness.