Google has asked the High Court to throw out a legal action brought by former Formula One boss Max Mosley over the continuing availability on the search engine of images of him at a sex party.
Mosley (pictured, Reuters), 74, who is seeking damages and an injunction, has brought a claim against US-based Google Inc and Google UK under the Data Protection Act and against Google Inc for misuse of private information.
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But Google's lawyers say that his case is unsustainable in fact and law and should be struck out, and that permission to serve the claim on Google Inc outside the jurisdiction should be set aside.
The litigation follows Mosley's 2008 privacy victory against the now-defunct News of the World when he won £60,000 compensation after it accused him of taking part in a "sick Nazi orgy" with five prostitutes.
Mosley, the son of the 1930s Fascist leader Sir Oswald Mosley, did not dispute taking part in the sadomasochistic role-play at a rented Chelsea basement flat, but said it was consensual and private, with no Nazi overtones.
He said that his life was devastated by the March 2008 expose and by the newspaper putting secretly-filmed footage on its website, which attracted at least 3.5 million hits.
Google's counsel, Antony White QC, told Mr Justice Mitting at the High Court yesterday that the threshold test was whether a person had a reasonable expectation of privacy, taking into account all the circumstances of the case.
"There can be few privacy claims which relate to material which has been quite so widely publicised over so many years as the images which are the subject of this claim," he said.
Shortly after the expose, Mr Justice Eady had rejected Mosley's application for a temporary injunction against News Group Newspapers (NGN), saying that he no longer had any reasonable expectation of privacy and that, even if he had, the "dam has effectively burst" and an order would be futile.
After the trial, the judge did grant a permanent injunction against NGN, preventing re-publication, on the basis that it should not be entitled to profit from its own wrongdoing, but this did not prohibit other parties from using images already in the public domain.
"The images, including the 95-second video, have now been continuously available online for over six years and have in all likelihood been viewed by millions of people around the world," White said.
"There is no previous successful claim for misuse of private information which relates to material which has been so widely disseminated and which is so well-known.
"If the claimant had lost his reasonable expectation of privacy back in April 2008, within days of publication, it is clear that six years on he cannot have any reasonable expectation of privacy in relation to the images."
He said that, notwithstanding this, Google Inc had used its notice and takedown procedures to block images when specific URLs had been provided because, whatever the strict legal position, it had some sympathy for Mosley and wished to avoid a dispute.
He described Mosley, who was in court for the hearing, as someone who had remained in the public eye as "an admirable campaigner for privacy rights".
White added that Google Inc, as the operator of Search, was not a "publisher" of the images for the purposes of a privacy claim and no general obligation to monitor could be imposed on it.
Mosley's lawyers say that Google's application is misconceived and want it dismissed with a defence filed within 28 days.
His counsel, Hugh Tomlinson QC, said that although Mosley had pursued third parties who continued to publish in several jurisdictions, the image remained accessible to users of Google Search.
Google accepted that links to the images should be removed from its indices, but would only do so after Mosley sent them the precise URL for each image, which meant he was forced to engage in what a Canadian court had described as an "endless game of 'whack-a-mole'".
He added that this was despite the fact that, as Google now accepted, it was possible for it to take technical steps to prevent the images being indexed by Google Search in the first place.
Faced with "this lack of co-operation" from Google, Mosley had brought his claim in July last year.
Tomlinson added: "Despite its dominance of the online search market in the UK, Google has consistently sought to avoid appearing before the English courts to defend itself on the merits.
"Whilst accepting that it should take material down – as in the present case – it has consistently refused to use automated technical means to assist individuals.
"The court should dismiss these applications and the defendants should be required to defend themselves at a full trial."
The hearing continues tomorrow when the judge is likely to reserve his decision to a later date.