Should Google share the blame for hacked photos?

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

Lawyers, acting on behalf of a number of unnamed celebrity victims who werevictims of the hacking, have threatened a $100 million US lawsuit against Google fornot 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 toremove the images, but in knowingly accommodating, facilitating and perpetuatingthe unlawful conduct."

"It is time that Google owns up to its conduct and remedies this gross violation oflaw, ethics, morals and basic privacy rights," says the letter, written by Californiaentertainment 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 responsibilityissues 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. Thedecision came about after a Spanish man searched his name on Google and found a1998 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, sayingit had removed tens of thousands of pictures within hours of the requests beingmade, and had closed hundreds of accounts.

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

"So they do benefit from search, and unfortunately they probably benefit fromsome 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 goout and proactively prevent this content from being posted. But that's not Google'slegal responsibility."

More about copyright?

Peel away the heated legal rhetoric, and the actual case being threatened againstGoogle seems to centre more around copyright infringement and not any violationof privacy.

Anyone who owns pictures that are hacked and disseminated online can requestGoogle 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 expeditiouslyor not.

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

"The way it's being spun now is that Google is this lawless entity that's notcomplying 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 initiativesat the University of Washington, said that it would be difficult to see whatGoogle's liability actually is in just providing search results.

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

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

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

"I think the question comes down to how much they are monetizing and how muchextra 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 thenit's auto-filling the phrase. But that thing is popular because it's directing toknown 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 videostaken in a previous relationship and which are then posted on the internet, in what'sbeen dubbed as "revenge porn."

In a recent case in B.C., for example, a woman typed her name into Googleand saw intimate photos of her posted online on The Dirty, a U.S. website knownto 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, sincethe victim doesn't have a copyright claim to them.

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

"Google has a commitment to freedom of speech, which of course also helps theirbusiness 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 beForgotten."