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If a Google search of your name turns up a naked selfie you once sent to your ex or other intimate material, what do you do, other than resign yourself to the fact it will be there for potential employers and the rest of the world to see, forever?
In the case of former Formula One president Max Mosley, he decided to sue Google in several countries to remove links to photos of him at a sex party. The images were originally published by the now-defunct News of the World.
In 2008 he won a court case against the newspaper in the UK for breach of privacy, but the images were still popping up in Google searches.
When the European Court of Justice backed the “right to be forgotten” in its Google Spain decision last year, Mosley brought a claim against Google in England under the UK’s Data Protection Act. He had won similar claims in Germany and France.
Last month Mosley and Google settled the dispute out of court. They did not disclose the terms of the deal.
Legal remedies?
Mosley had money and influence to facilitate his campaign to have the photos taken down, but what about people without the means to pursue a court case in every country?
According to barrister Pauline Walley, while there is a constitutional right to privacy, taking a High Court action to have material removed from a search engine is "beyond the reach of most ordinary human beings".
Walley, who co-authored an upcoming book on cyber law and employment, is a former chairwoman of the Irish Criminal Bar Association. She spoke about cyber harassment and the remedies available under Irish law at the association's annual conference in April.
Labour Party Senator Lorraine Higgins proposed the Harmful and Malicious Electronic Communications Bill 2015 earlier this year, which would make it an offence to send explicit content to another person, among other things. However the current legal pathways available to deal with cyber harassment are unclear.
Cyber harassment includes not just revenge porn, but impersonating someone online, publishing false information about someone and surveillance.
The criminal harassment law is one pathway, but in order for someone to be charged with harassment, there must be a persistent course of conduct.
“But if someone makes a single upload on to the internet of sexually intimate photos of you, to make your life a misery, that is not a persistent course of conduct under” the harassment law, Walley says.
If that fails, there are possible civil harassment or data protection remedies, but, she adds, there is no statute for civil harassment and the few cases that have been brought have dealt with a persistent course of conduct.
“So you would probably be more successful in arguing that it’s a breach of data-protection laws. You’d have to go to websites and ask them to de-list the material. That doesn’t mean that you’ll capture [everything], but it’s better than nothing.”
Many platforms have guidelines that prohibit the posting of explicit material without consent, but the process of removing something can be long and overwhelming. An Irish company called the Hit Team deals with platforms to remove sensitive content for customers.
Tweak or change?
Walley says laws were not created for the cybermodel of crime and tweaking existing laws is not enough.
“One of the things I find frustrating is there are many academics who say you don’t need to change the laws at all. What you need is better enforcement.
“But that is to misunderstand that most people, when they go to a Garda station and say ‘my photographs have been uploaded’, gardaí will say ‘we’re very sorry, that’s a private matter. You’re just going to have to do something about that yourself’.”
She says Ireland urgently needs a statutory harassment regime for civil and criminal wrongdoing, including notice and takedown provisions. Without a statutory notice and takedown procedure, victims of cyber harassment and online defamation are abandoned by politicians and forced to seek out expensive private law remedies.
“A notice and takedown procedure would transform the landscape because everybody would know the rules and service providers would know they have a time limit within which to comply,” she says, adding that the route would be similar to offline world remedies, such as those for defamation. If you have been harassed online, the material should be taken down and not reposted, following the same procedure a newspaper would use in a defamation case.
“In the mid-2000s, you had web 2.0 and that changed everything because suddenly you had an incubator for harassment, for defamation, for stalking and it was all interactive. Suddenly this whole idea of inciting third parties to defame and harass you became a model that nobody had ever contemplated,” Walley says.
“I think there’s been an appalling failure on the part of EU lawmakers and on a domestic level to bring in laws to deal with these issues.”
Cyber bill of rights
She thinks that, ultimately, there should be a worldwide cyber bill of rights to protect people from cyber abuse.
“Whether you live in Afghanistan or Rathmines or Arkansas, everybody should know that there’s some fundamental protection.”
June 15th is the 800th anniversary of Magna Carta, regarded as the first recognition of certain fundamental rights.
She says something similar is needed to protect fundamental rights in the digital age.
“There are people all over the world who have had to take court cases to get material taken down,” Walley adds. “Some of them have been like Max Mosley – very well resourced, a lot of influence and he has had a very difficult time. But there are a lot of ordinary people whose lives have been destroyed. A takedown is the first step.
“I can’t understand why people aren’t banging the table about the lack of notice and takedown procedures. To me it is one of the most important issues currently facing lawmakers and the European Commission has been looking at this for years and has done nothing about it.”