Should Google share the blame for hacked photos?

The mass hacking of thousands of nude photos of celebrities has raised questions over how culpable the search engine giant should be for aiding in this particular invasion of privacy, among others.

Lawyers, acting on behalf of a number of unnamed celebrity victims who were victims of the hacking, have threatened a $100 million US lawsuit against Google for not disabling searches for the hacked material quickly enough. 

They recently sent off a letter to the company, accusing it of "despicable, reprehensible conduct in not only failing to act expeditiously and responsibly to remove the images, but in knowingly accommodating, facilitating and perpetuating the unlawful conduct."

"It is time that Google owns up to its conduct and remedies this gross violation of law, ethics, morals and basic privacy rights," says the letter, written by California entertainment lawyer Martin Singer. 

"Rather than be the transgressor, Google should set the example for all other  operators and providers. In Google's own words, 'Don't be evil'."

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The threatened legal action is just another example of some of the responsibility issues Google is facing over its content. 

In May, Europe's top court ruled that internet search engines like Google had  to remove links containing embarrassing material about an individual's past. The decision came about after a Spanish man searched his name on Google and found a 1998 story about his property being auctioned because of an unpaid welfare debt. Google had refused to remove the story.

In the matter of the hacked celebrity photos, Google responded to the letter, saying it had removed tens of thousands of pictures within hours of the requests being made, and had closed hundreds of accounts.

Google makes lot of money from online advertising and monetizing search results is one of its great innovations, notes Jonathon Penney, an assistant professor of law at Dalhousie University.

"So they do benefit from search, and unfortunately they probably benefit from some of the searches for some of these privacy-invading pieces of content."

But Penney added that the lawyers' letter "almost suggests they want Google to go out and proactively prevent this content from being posted. But that's not Google's legal responsibility."

More about copyright?

Peel away the heated legal rhetoric, and the actual case being threatened against Google seems to centre more around copyright infringement and not any violation of privacy.

Anyone who owns pictures that are hacked and disseminated online can request Google to remove those images under the Digital Millennium Copyright Act. Once the notice is sent to Google, it must act "expeditiously" to remove those  photos. 

The question in the celebrity-hacking case is whether Google acted expeditiously or not. 

Penney said that, from his research, Google is pretty good in terms of compliance to these types of requests.

"The way it's being spun now is that Google is this lawless entity that's not complying with these notices and is therefore complicit with the original scandal," Penney said. "I think that's going over the top."

Sean O'Connor, assistant dean for law, business and technology initiatives at the University of Washington, said that it would be difficult to see what Google's liability actually is in just providing search results. 

However, what has come under scrutiny is Google's auto-fill search practice — in which someone types in a word and Google automatically offers suggestions to complete the search.

"Some people are starting to wonder whether that, because Google has to have some knowledge setting up its algorithm to respond this way, whether that creates liability because it more actively directs somebody," O'Connor says. 

In the case involving the hacked celebrities, if someone typed in the words "Jennifer Lawrence" and "nude pictures" was a suggested search term offered by Google, some suggest that Google may not exactly be a passive player in promoting this kind of search.

"I think the question comes down to how much they are monetizing and how much extra value they get for monetizing these extra search results," O'Connor said.

"If the auto-fill is finding there's a lot of searches for a certain phrase then it's auto-filling the phrase. But that thing is popular because it's directing to known pirate sites, then it seems to a lot of us that Google could control that a little  better."

Intimate photos

Where the issue gets murkier is when the subject is intimate pictures or videos taken in a previous relationship and which are then posted on the internet, in what's been dubbed as "revenge porn."

In a recent case in B.C., for example, a woman typed her name into Google and saw intimate photos of her posted online on The Dirty, a U.S. website known to feature photos of men and women, and comments about them. 

She later realized it was her ex-boyfriend who had posted these pictures.

In cases like this, Google is under no legal obligation to remove the pictures, since the victim doesn't have a copyright claim to them.

But Penney said companies like Google who have an important brand don't want bad press and may still act in cases like these.

"Google has a commitment to freedom of speech, which of course also helps their business model. But if new legal remedies are created for revenge porn victims, Google will surely comply, as they have with the DMCA and the EU Right to be Forgotten."