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Germany: Court Rules Google Has No Duty to Check Websites for Defamatory Content Before Displaying Search Results

(Mar. 19, 2018) On February 27, 2018, the German Federal Court of Justice (Bundesgerichtshof, BGH) ruled that Google is not obligated to prescreen websites for defamatory content before displaying links to them in its search results. (BGH, Feb. 27, 2018, Docket No. VI ZR 489/16, BGH website (not yet published); Press Release No. 39/2018, BGH, Bundesgerichtshof zur Prüfungspflicht des Betreibers einer Internet-Suchmaschine (www.google.de) bei Persönlichkeitsrechtsverletzungen (in German) [BGH on the Review Obligation of an Internet Search Engine Provider (www.google.de) in Cases of Personality Right Infringements].)

Facts of the Case

The plaintiffs, a married couple who provide IT services, brought an action before the Regional Court of Cologne seeking to stop Google from displaying links to websites on which the plaintiffs were allegedly defamed by other internet users. (Press release, supra.)

In 2011, the husband was involved in an undetermined capacity in setting up an internet forum, whose members soon afterwards started quarreling on forum pages with members of a different internet forum. The latter accused the members of the internet forum that the husband was involved in of stalking and harassing third persons. In the context of helping to establish the internet forum’s website, the plaintiff set up email forwarding to his email address. Due to the enabled email forwarding, third persons were able to determine the IP address and the actual identity of the plaintiffs and passed on the information to members of the rival internet forum. Members of the latter internet forum then verbally attacked the plaintiffs on forum pages. They posted comments saying that the husband operated the internet forum and that he was therefore responsible for the stalking of third persons committed by the members of the forum. The wife was accused of knowing about her husband’s role in this forum. (Id.)

The plaintiffs contacted Google and submitted an affidavit regarding the husband’s connection to the internet forum. They demanded that Google refrain from displaying links to the websites concerned in search results. Google deleted some links but not all of them. It stated that the plaintiffs had identified the corresponding infringements only in general terms. (Landgericht Köln [Regional Court of Cologne], Aug. 16, 2015, Docket No. 28 O 14/14, (in German) (Juris database, by subscription).)

The plaintiffs claimed that Google was responsible for the continuous violation of their personality rights. Personality rights are a bundle of rights designed to ensure the development and respect of a person’s personality, including the protection of personal honor. Apart from seeking that Google stop displaying specific websites, the plaintiffs further requested Google to set up search filters to prevent websites with similar defamatory content from appearing in future search results, information about the third persons who posted new offending comments, and payment of compensation. (Press Release, supra.)

While the court of first instance had essentially ruled in favor of the plaintiffs, the Higher Regional Court of Cologne dismissed the action in its entirety. The plaintiffs appealed the ruling of the second instance to the BGH. (Id.)

Decision

The BGH upheld the ruling of the Higher Regional Court of Cologne. The Court held that the website content at issue, to which Google provides links in its search results, does not originate from Google, but from third persons. The BGH also stated that Google does not make the content at issue its own by displaying links to the websites in the search results. Google merely searches all available sites on the internet by means of computer programs in order to automatically generate search results. (Id.)

By displaying the links to the websites, Google, in principle, can be held liable if it contributes willingly and causally to the infringement of personality rights, according to the BGH. The Court stated, however, that such a liability of a search engine provider assumes that it does not meet inspection obligations. The BGH explained that search engine providers cannot be expected to ensure that all websites which appear in the search results do not contain any violations of the law. Instituting such a general obligation to inspect all contents found by the search programs would seriously call into question the business model of search engine operators, which is approved by the lawmakers and desired by society. Without the availability of search engines, it would be impossible for individuals to get meaningful use out of the internet due to the unmanageable flood of information it provides. The BGH concluded that a search engine operator need only take action if it is notified of obvious and clearly discernible rights infringements by the party affected. (Id.)

The BGH held that this was not the situation in the present case. The Court took the view that the verbal attacks asserted by the plaintiffs affected their reputation, but were within the context of the husband’s connection with the internet forum concerned, whereby the husband’s exact role could not be clarified in the legal proceedings. The BGH explained that the plaintiffs were not able to show corroborating evidence that the accusations were unfounded. Thus, Google, on the basis of the vague information given by the plaintiffs, could not have been expected to recognize the rights infringements. (Id.)

Prepared by Catharina Schmidt, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist.