Reference:  EWHC 59 (QB)
Court: High Court, Queen's Bench Division
Judge: Mitting J
Date of judgment: 15 Jan 2015
Summary: Data protection - injunction - blocking of images - strike-out -realistic prospect of success - E-Commerce Directive - Data Protection Directive - general monitoring obligation
Instructing Solicitors: Payne Hicks for C, Pinsent Masons for D
In 2008 the News of the World published an article about C engaging in sado-masochistic activities with prostitutes. C brought a claim for misuse of private information and was awarded an injunction and damages of £60,000. Since that time, C has been seeking removal of the images from the internet through legal actions in various jurisdictions. Google has a policy of taking down images once notified by C of each individual offending URL. Despite these efforts the images still remain available online, appearing on new websites once an old one has been taken down.
In the light of the CJEU decision in Google Spain, C brought an action against Google in misuse of private information and under sections 10 and/or 13 and 14 the Data Protection Act 1998 (DPA). Google applied to strike out the claim and/or for judgment to be entered in their favour as the claim had no real prospect of success. The claim against Google UK was discontinued by C. The claim in misuse of private information was stayed. The claim under section 13 DPA was stayed pending the outcome of the appeal in Vidal-Hall v Google.
Did a claim under section 10 DPA (the right to prevent processing likely to cause damage or distress) have a realistic prospect of success such that the claim should continue to trial?
Dismissing the application and allowing the claim to proceed:
In the light of the decision in Google Spain, it was conceded that Google Inc is a data controller. Notices had been served on Google requesting it stop processing the data in question. Notifying Google of each individual URL is “a Sisyphean task.” It is at least arguable that it is an insufficiently effective means to block the images from public view.
Google argued that the E-Commerce Directive excluded liability for images returned via a search engine by means of the caching defence under Article 13. Further, it argued that the order sought by C would constitute a general monitoring obligation, prohibited by Article 15 that Directive.
The judge found that in interpreting the two directives there were two possibilities: (1) the processing of personal data was solely governed by the Data Protection Directive, subject to the general monitoring point; or (2) the E-Commerce Directive and the Data Protection Directive should be read in harmony. The judge expressed a provisional view in favour of the latter. In any event, both Directives permit the availability of a judicial remedy to stop the wrongful processing of personal data – as such a remedy such as the one sought by C was one which was in principle available. On the evidence presently before the court the judge could not make a decision on whether the order sought would contravene the prohibition on general monitoring, but that the case was certainly arguable.
Concluding, Mitting J said that the case: “seems to be to be a viable claim which raises questions of general public interest, which ought to proceed to trial”.
The court thought it clearly arguable that an order of the type sought by Mr Mosley could be justified under the law. It will be interesting to see how this case proceeds at trial, and how the court interprets the prohibition on general monitoring in the light of the technical means available to Google to block images which it deploys in other contexts (for example the blocking of pornographic images of children). The policy of Google (and other ISPs) of requiring individual URLs for each an every offending image/page/comment appears under threat. The impact of the Google Spain decision continues to be felt.
Another interesting point in the judgment is the judge’s finding that reducing images to ‘thumbnails’ does not constitute altering them, such that an ISP doing so takes itself outside the protections of Article 13 (and presumably Article 12 which uses the same terms on this point) of the E-Commerce Directive.