Google's duty of verification in the event of infringements of personality rights

The VI Civil Senate of the Federal Court of Justice has ruled that the operator of an internet search engine (in this case Google) is not obliged to ascertain before displaying a search result whether the content found by the search programs contains violations of personality rights. The search engine operator only has to react if it becomes aware of an obvious violation of the general right of personality that is clearly recognisable at first glance by means of a concrete notice.

The facts of the case: 

The plaintiffs are claiming an injunction against the defendant in the main action to make certain content on third-party sites that allegedly infringes personal rights discoverable via the search engine.

The defendant, which has its seat in California, operates the internet search engine "Google". It uses software to continuously and automatically search the internet and includes the internet pages thus determined in a search index. The search engine outputs the data to the users as a list of results according to the search term entered according to an algorithm created by the defendant and links them.

The plaintiffs, a married couple, are IT service providers. From mid-February 2011, the plaintiff had at least helped to set up an internet forum - hereinafter: F-Internetforum. Members of this forum conducted disputes with members of another internet forum by means of posts on various forum pages. The members of the F-Internet forum were accused, among other things, of stalking and harassing third parties. Due to an e-mail forwarding set up by the plaintiff in the course of his work for the F-Internet forum, third parties established the IP address and the identity of the plaintiff and passed this information on to members of the Internet forum that was hostile to the F-Internet forum. The latter then wrote posts on the internet pages complained of in the action, in which the plaintiff was held responsible for actions of members of the F-Internet forum (including alleged stalking). The pages proven by a targeted search in the defendant's list of results therefore contained contents according to which the plaintiff operated the F-Internet forum, was (co-)responsible for the contents published there or at least had knowledge of the contents of the forum and the plaintiff must have had knowledge of her husband's role in this forum. In this context, words such as "ass kissers", "serious criminals", "criminal scoundrels", "terrorists", "gang", "stalkers", "criminal stalker household" were used in relation to the plaintiffs.

The District Court granted the action for injunctive relief in part. The court of appeal dismissed the action in its entirety. In their appeal, which was allowed by the court of appeal, the plaintiffs continued to pursue their claims.

The Senate's decision:

The appeal was unsuccessful. The plaintiffs are not entitled to any claims against the defendant for violation of the general right of personality.

The contents objected to by the plaintiffs on the internet pages which the defendant makes discoverable by linking are not the defendant's own contents. They were placed on the internet by other persons. The defendant has also not made the contents its own by including them in the search index. The defendant merely searches the pages available on the internet with the help of programs and automatically creates a search index from them. It is true that the defendant can in principle also be liable as a so-called indirect interferer if it contributes to the infringement of the general right of personality in a deliberate and contributory manner. This is because the posts on the internet, through which the plaintiffs consider their rights of personality infringed, are made discoverable by the search engine. However, the search engine operator's liability presupposes a breach of the duty to check. The search engine operator cannot reasonably be expected to ascertain whether the contents found by the search programs have been lawfully placed on the internet before making them discoverable. The assumption of a general duty of control - which is hardly feasible in practice - would seriously call into question the existence of search engines as a business model that has been approved by the legal system and is socially desired. Without the assistance of such a search engine, the internet would not be useable in a meaningful way for the individual due to the flood of data that can no longer be overlooked. The operator of a search engine is therefore only subject to specific duties of conduct if he has become aware of an obvious infringement of rights that is clearly recognisable at first glance through a specific notice.

These conditions were not met in the case at issue. The impugned designations of the plaintiffs were indeed abusively sharp and impaired their honour. However, their defamatory content was not from the outset outside any context of use rooted in a factual dispute. For the statements were obviously connected with the role the plaintiff was said to have played in the F Internet forum. According to the content of the search results complained of, the members of the F-Internet forum were accused, among other things, of stalking (criminal offence within the meaning of § 238 of the Criminal Code). The plaintiffs had not been able to clarify the involvement of the plaintiff in the creation of the F-Internet forum beyond doubt. The plaintiff himself admitted to having been involved in the "setting up" of the F-Internet forum; an e-mail forwarding he had set up via the F-Internet forum to him was also still active weeks after the forum had been set up. Beyond his own rather general and sweeping assertion, corroborated by an "affidavit", that he had nothing to do with the F-Internet forum, the plaintiff has not shown any reliable evidence for the groundlessness of the accusations made against him - and at least indirectly in the form of the connivance of his wife, the plaintiff. The defendant therefore did not have to infer an obvious and at first glance clearly recognisable violation of the law from the statements complained of.

Judgment of the BGH of 27 February 2018 - VI ZR 489/16

Lower courts:

Cologne Regional Court of 16 August 2015 - 28 O 14/14

Cologne Higher Regional Court of 13 October 2016 - 15 U 173/15

Judgment of the BGH of 27 February 2018 - VI ZR 489/16


Source: Press release of the Federal Supreme Court of 27.02.2018


GoldbergUllrich Attorneys at Law 2018

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law