Lawyers for former F1 racing boss argue that search engine is a publisher and is misusing private information

Max Mosley, the former head of Formula One racing, has begun a UK high court action to stop Google showing pictures of him at a sex party.

Having won similar claims in French and German courts, Mosley’s lawyers have now initiated action in the high court in London, arguing that the internet search engine is a publisher and is misusing private information.

The challenge is based on a court order made against the News of the World in 2008 but relates only to pictures taken for the story. The outcome of the latest case could set a UK legal precedent in enforcing privacy online.

Mosley, 74, successfully sued the now-defunct Sunday tabloid for grossly invading his privacy after it printed pictures and published video of him indulging in a five-hour sadomasochistic session with prostitutes in a Chelsea apartment.

His claim is not based on the 2014 precedent of a European court of justice ruling that established a right to be forgotten in relation to a Spanish claimant who wanted to have a repossession notice deleted from Google searches about him.

In the original case against the News of the World, Mosley was awarded £60,000 in damages as well as costs. The paper had falsely accused him of taking part in a “sick Nazi orgy”.

Mosley, who is the youngest son of Sir Oswald Mosley, the former leader of the British Union of Fascists (BUF), insisted that the roleplay at the rented Chelsea basement was harmless, consensual and private and had no Nazi overtones.

In the high court on Wednesday, Antony White QC, for Google, said that the internet company was applying to have the case struck out. Information about the party was already in the public domain and Mosley therefore no longer had any legitimate expectation of privacy in relation to photographs. “The dam has effectively burst,” White said.

The images had been viewed by 435,000 people and 1.5 million had seen the video footage immediately after publication, he added. “We don’t know how [Mosley’s] privacy was somehow regained. There’s no continuing reasonable expectation of privacy; everyone is now free to publish.”

White said that Google is not a publisher: “There are 40,000 searches [on Google] a second and three and a half billion a day. To suggest that there is any knowing involvement [in publication] is totally artificial. The index [of searches] is provided wholly automatically by crawling through the web. It an algorithmic operation without human involvement.”

But Hugh Tomlinson QC, for Mosley, told the court: “We say that [Google are] publishers because they continue to make [the photographs] available on the search engine site. The issue is about under what circumstances they are a publisher.”

Mosley, who gave evidence at the Leveson inquiry, has become a campaigner for privacy rights. Before the hearing began, his lawyers said the case concerned “the ability of individuals within the UK to enforce their rights against the large corporations that control access to the internet”. The statement added: “It seeks to compel Google to stop gathering and publishing images that the English high court decided in 2008 were unlawful in the landmark privacy case Mosley v News Group Newspapers.”

Google has never viewed itself as a publisher and is reluctant to be put in a position where it fears it will be made responsible for policing the internet. It has resisted building a pro-active filter system that would exclude the pictures of Mosley as it might also take down legal material.

The hearing continues.

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