The first plaintiff, a public limited company which sells food supplements and cosmetics on the internet, and the second plaintiff, its founder and chairman of the board of directors, assert claims for injunctive relief and monetary compensation against the defendant, which is domiciled in the USA and operates an internet search engine under the internet address "www.google.de". By entering search terms in the defendant's search engine, users can access content posted on the internet by third parties via a displayed hit list. Since April 2009, the defendant has integrated an "autocomplete" function into its search engine, with the help of which various search suggestions ("predictions") in the form of word combinations are automatically displayed to the internet user while entering his search terms in a window which then opens. The search suggestions displayed within the framework of this search supplement function are determined on the basis of an algorithm which, among other things, takes into account the number of search queries entered by other users.
In May 2010, the second plaintiff noticed that when he entered his name R.S. in the window that opened as part of the "Autocomplete" function, the word combinations "R.S. (full name) Scientology" and "R.S. (full name) Fraud" appeared as search suggestions. The plaintiffs consider their personal rights and business reputation to have been violated by this. They claimed, among other things, that the plaintiff was neither connected with Scientology in any way, nor was he accused of fraud, nor had any corresponding preliminary proceedings been initiated against him. In not a single search result was a connection between the plaintiff and "Scientology" or "fraud" apparent.
The plaintiffs demand that the defendant refrain from suggesting the additional combination terms "Scientology" and "fraud" on the website of its search engine after entering the name of the second plaintiff as a search term in the context of the "Autocomplete" function. In addition, they sought compensation for pre-trial legal costs and the second plaintiff additionally sought monetary compensation. The Regional Court dismissed the action. The Higher Regional Court dismissed the plaintiffs' appeal against this decision.
The plaintiffs' appeal, which was allowed by the Court of Appeal, was successful. The VI. Civil Senate of the Federal Court of Justice, which is responsible for infringements of personality rights, overturned the appeal judgement and referred the case back to the Court of Appeal. The VI Civil Senate of the Federal Supreme Court, which is also responsible for violations of personality rights, overturned the appeal judgement and referred the case back to the Court of Appeal for a new hearing and decision.
The Court of Appeal erred in law in finding that the plaintiffs were entitled to injunctive relief pursuant to §§ 823 para. 1, 1004 BGB in conjunction with Art. 1, 2 GG against the defendant as operator of the internet search engine. Art. 1, 2 GG against the defendant as operator of the internet search engine.
The search term suggestions "Scientology" and "fraud" when entering the first name and surname of the second plaintiff in the defendant's internet search engine contain an impairment of the plaintiffs' right of personality, since they have a tangible statement content, there is a factual connection between the second plaintiff and the terms "Scientology" and/or "fraud" with negative connotations.
The plaintiffs' right of personality would be violated by this if this statement - as they have submitted - were untrue and therefore outweighed their position, which is protected by fundamental rights, against that of the defendant.
This impairment of the plaintiffs' right of personality is also directly attributable to the defendant. It evaluated the user behaviour with the computer programme it created and made the corresponding suggestions to the users of the search engine.
However, it does not follow from this that the defendant is liable for every infringement of personality rights caused by search suggestions. The defendant cannot be accused of having developed and used search suggestion software, but only of not having taken sufficient precautions to prevent the search suggestions generated by the software from infringing the rights of third parties.
If a person concerned files a claim against the operator of an internet search engine with a search term supplement function for the omission of the supplementation of terms that infringe personality rights when the name of the person concerned is entered, the liability of the operator presupposes the violation of reasonable duties of review. The operator of a search engine is generally not obliged to check the search suggestions generated by a software in advance for possible infringements of rights. In principle, the operator is only responsible when he becomes aware of the unlawful infringement of the right of personality.
If a person concerned informs the operator of an unlawful violation of his or her right of personality, the operator is obliged to prevent such violations in the future.
The court of appeal - from its point of view logically - did not carry out a legal assessment from the point of view of a breach of the duty to examine, nor from the point of view of the claim for monetary compensation - to be granted only within narrow limits - and the claim for reimbursement of pre-litigation lawyer's fees. It will have to make up for this.
Judgment of the BGH of 14 May 2013 - VI ZR 269/12
Lower courts:
Cologne Regional Court - Judgment of 19 October 2011 - 28 O 116/11
Cologne Higher Regional Court - Judgment of 10 May 2012 - 15 U 199/11,
reprinted in GRUR-RR 2012, 486 and ZUM 2012, 987
Source: Press release of the BGH
Goldberg Attorneys at Law 2013
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
