As may recall, just about a month ago there was a leak of nude and semi-nude photos of celebrities including The Big Bang Theory’s Kaley Cuoco, Academy Award winner Jennifer Lawrence, and model Kate Upton, as well athletes such as Olympians Hope Solo and McKalya Maroney. Rather quickly it was determined that the leak occurred because someone, or a group of someones had managed to gain access to the iCloud accounts of a number of people and thereby gain access to photos that they had taken with their iPhones and other devices. Quickly, the photos started showing up on sites such as 4Chan and Reddit, and while those avenues were eventually blocked the photos were available long enough that they were copied and posted elsewhere around the web to the point where they began showing up in the search results of Google and other search engines. Now, an attorney who is apparently representing a number of the celebrities caught up in the incident is threatening Google with a massive lawsuit as a result of its alleged role in disseminating the photographs:
A celebrity attorney whose firm represents more than a dozen high-profile women whose personal photos were stolen and then posted online has threatened Google with a lawsuit potentially seeking $100 million or more in damages related to the distribution of those images.
The Internet giant, however, said Thursday that it had quickly taken down “tens of thousands of pictures” and “closed hundreds of accounts” related to the photo hacking incident, which is being investigated by the FBI.
Jennifer Lawrence and Kate Upton were among the first celebs targeted when the pictures went online over Labor Day weekend on sites including 4chan and Reddit. Since then, personal photos of many other famous women whose Apple iCloud accounts were hacked have been similarly disseminated.
Attorney Martin Singer’s Wednesday letter accused the Internet giant of failing to act quickly and effectively when asked to remove the personal pictures from sites it owns, including YouTube and Blogspot.
The letter referenced “over a dozen female celebrities, actresses, models and athletes” whose photos had been stolen, without mentioning specific names. Amber Heard, Avril Lavigne, Vanessa Hudgens, Emily Ratajkowski, Megan Good and others are among those who had pictures stolen.
“[B]ecause the victims are celebrities with valuable publicity rights, you do nothing – – nothing but collect millions of dollars in advertising revenue from your co-conspirator advertising partners as you seek to capitalize on this scandal rather than quash it,” the letter said. “Like the NFL, which turned a blind eye while its players assaulted and victimized women and children, Google has turned a blind eye while its sites repeatedly exploit and victimize these women.”
The letter demanded that Google remove all of the stolen images from sites it owns, suspend users who posted the pictures, suspend sites that solicit or facilitate the distribution of the pictures, and remove related results from its search-engine returns.
Google responded to the letter last last week by announcing that it was removing “tens of thousands” of images, but that doesn’t seem to be good enough for the attorney involved:
[T]he Attorney’s representing the Hollywood stars cites that the action didn’t happen quickly enough and that the company benefited financially from the leak. Marty Singer, the attorney in question, claimed that Google ignored initial requests to take the personal photos and data down, before actually beginning to afterward.
“Google has taken little or no action to stop these outrageous violations. Google is making millions and profiting from the victimizations of women,” Singer said in a letter written for a news outlet in Hollywood, describing the fight he would be taking to Google.
Many have contested that the leaked photographs are still on sites like Blogger, YouTube and even general Google searches, even though Google has said they’ve eliminated tens of thousands of photographs from their site and closed hundreds of accounts which were perpetuating the photographs.
(…)
If Google acted maliciously, or failed to remove the images as quickly as they could then clearly they will face a lot of litigation, and will potentially lose hundreds of millions in losses from the situation. However, it remains to be seen whether this is a matter of Google fundamentally failing to act, or acting maliciously to drive their bottom line – or if it’s simply a matter of litigation in an effort to assign blame for the breach and perpetuating of inappropriate, private photos.
In many respects, the claims that are issue seem similar to those that are implicated by the ruling earlier this year by the European Court of Justice which created the so-called “right to be forgotten.” In that case, the Court ruled that citizens of the European Union would have the right to demand that Google and other search engines remove links to material about them that had been indexed by the search engine’s spider. The most unique thing about that ruling, of course, is that it covered not only material that is defamatory, but also things that, while true,might prove to be embarrassing for one reason or another. As I said at the time, this ruling was troublesome not only because it seemed to be almost impossible to implement but because of the manner in which it assigned liability to Google for something over which the company had no real control, the presence of allegedly “bad” material on web servers that the company has no real control over. Obviously, the question is different when it comes to sites like YouTube and Blogspot that are part of Google itself, but even in those cases it seems apparent to me that Google cannot be held responsible for photographs that it isn’t necessarily aware of until someone brings them to the company’s attention. With respect to information in the search engine database, though, the liability would seem to be even further removed considering that, in essence, Google is really nothing more than an indexing service for the Internet. Looked at that way, it seems absurd for Google to be held liable under for material over which it has no real control, and when you do so you are likely to end up with the same absurd results that we are seeing in Europe as the company tries to implement take down requests there.
In this case, of course, the Plaintiffs wouldn’t be proceeding under European law, they would proceeding under various privacy laws, including the California Celebrities Right’s Act, which given celebrities and their estates certain rights to control how their image is used in public. Even under this law, though, it’s hard to see where Google’s liability for anything that isn’t under its control would lie. Again, we’d still be dealing with the fact that Google did not steal the images, was not involved in security for the service where the image was stored, and did not post the images elsewhere. All of those actions were done by third parties that Google has no real control over. Even when the images are posted on a site that it does have control over, such as YouTube, it likely wouldn’t be aware of that fact until someone notified them of the fact. How that leads to liability either in the legal or the moral sense of the word is quite baffling.
The attorney’s appear to be saying that Google didn’t move fast enough in removing the images, and that they left them up in order to increase traffic and,presumably, their ad revenue. This claim seems to be especially weak to me, though. There doesn’t appear to be any time limit under applicable law during which a party notified that they are hosting or linking to material that violates the law must act, for example, and the amount of time it did take would obviously have to take into account the technical means necessary to track down the offending material and either remove it from Google’s servers or remove links to it from the search engine’s database. Additionally, it’s hard to say what damages the Plaintiffs would have actually suffered from the fact that there was a delay of a couple of days or even a week during which the photos remained available for anyone looking for them. So, unless the attorneys are able to uncover some kind of smoking gun document where Google decided to “slow walk” removing the images in order to enhance traffic and revenue, it would appear that this claim isn’t really going anywhere.
Jazz Shaw makes this observation about the whole case:
[H]opefully it won’t come as too much of a shock to anyone to learn that Google doesn’t have a huge room full of people sitting and scanning every site in the world, picking out which articles, pictures or fascinating recipes for fish tacos on various blogs to select for inclusion on search returns. Once the pictures are out there and showing up, Google also faces a daunting task to find and block them all even if they wanted to try. A desirable photo such as that of Kaley Cuoco with her shirt off (bad move, Penny) is going to go viral in seconds and be replicated on more sites than you can count. Google would be playing whack-a-mole on a cosmic scale to keep up with and purge them all. But for this they are the target of the lawsuit?
The answer, obviously, is that they are a target because, other than Apple, which has its own exposure here due to what many have alleged was the lax security of iCloud before the leak was uncovered, they are the potential target with the deepest potential target. The party, or parties, responsible for hacking into the accounts and initially posting the photographs are unlikely to have significant assets, and neither are the numerous other parties who took them from the initial postings on 4Chan and Reddit and posted them elsewhere on the Internet. Legal arguments aside for the moment, it’s natural that the attorneys for these celebrities would look to Google as potential source, not the least because the company may find it cheaper to settle the matter out of court than fight it out in court. As a matter of principle, though, I would suggest that Google not give up so easily because if these parties are able to assert claims against them in an American court on what seem to be pretty flimsy legal theories, then its only a matter of time before they’re dealing with the same headaches they are having because of a completely non-sensical ruling from a European court here in the United States.
