The Sixth Civil Senate of the Federal Court of Justice has ruled that the operator of an internet search engine (here Google) is not obliged to verify whether content found by its search programs infringes personal rights before displaying a search result. The search engine operator must only react when it gains knowledge of an obvious and immediately apparent infringement of general personal rights through a concrete notification.
Facts of the Case:
The plaintiffs primarily sought injunctive relief against the defendant, aiming to prevent certain allegedly personal rights-infringing content on third-party websites from being discoverable via the search engine.
The defendant, headquartered in California, operates the internet search engine “Google”. Utilizing proprietary software, it continuously and automatically crawls the internet, integrating the identified websites into a search index. The search engine then presents this data to users as a list of results, based on the entered search query and an algorithm developed by the defendant, and provides hyperlinks to these sites.
The plaintiffs, a married couple, are IT service providers. From mid-February 2011, the male plaintiff had at least assisted in the setup of an internet forum – hereinafter referred to as the F-Internetforum. Members of this forum engaged in disputes with members of another internet forum through posts on various forum pages. The members of the F-Internetforum were, among other things, accused of stalking and harassing third parties. Due to an email forwarding system established by the male plaintiff during his involvement with the F-Internetforum, third parties ascertained his IP address and identity, subsequently relaying this information to members of the internet forum hostile to the F-Internetforum. The latter then published posts on the internet pages challenged by the lawsuit, holding the male plaintiff responsible for actions attributed to F-Internetforum members (including alleged stalking). Consequently, pages identified through targeted searches in the defendant's results list contained content indicating that the male plaintiff operated the F-Internetforum, was (co-)responsible for the content published therein, or at least had knowledge of the forum's content, and that the female plaintiff must have been cognizant of her husband's role in this forum. In this context, derogatory terms such as “ass-kisser”, “hardcore criminals”, “criminal scoundrels”, “terrorists”, “gang”, “stalkers”, and “criminal stalking household” were used in reference to the plaintiffs.
The District Court partially granted the injunctive relief. The Higher Regional Court, however, dismissed the action in its entirety. With the appeal on points of law admitted by the Higher Regional Court, the plaintiffs continued to pursue their claims.
The Senate's Decision:
The appeal on points of law was unsuccessful. The plaintiffs therefore have no claims against the defendant for infringement of general personal rights.
The content on the internet pages challenged by the plaintiffs, which the defendant makes discoverable through linking, does not constitute the defendant's own content. This content was posted on the internet by other individuals. The defendant has also not adopted this content as its own by including it in the search index. The defendant merely searches existing internet pages using automated programs and generates a search index from them. While the defendant can, in principle, be held liable as an indirect infringer if it willfully and co-causally contributes to the infringement of general personal rights – given that the internet posts, which the plaintiffs perceive as infringing their personal rights, are made discoverable by the search engine – the liability of a search engine operator presupposes a breach of due diligence obligations. It cannot reasonably be expected to verify whether the content identified by its search programs was lawfully posted on the internet before making it discoverable. The imposition of a general duty of oversight – which is practically difficult to implement – would seriously jeopardize the existence of search engines as a business model, a model approved by the legal system and socially desirable. Without the assistance of such a search engine, the internet would not be meaningfully usable for individuals due to the unmanageable volume of data. Therefore, a search engine operator is only subject to specific duties of conduct once it has gained knowledge of a patent and immediately apparent legal violation through a concrete notification.
These prerequisites were not met in the case at hand. While the challenged epithets used against the plaintiffs were egregiously sharp and impugned their honor, their defamatory nature was not inherently outside the context of a factual dispute. This is because the statements were evidently linked to the role the male plaintiff allegedly played in the F-Internetforum. According to the content of the challenged search results, members of the F-Internetforum were, among other things, accused of stalking (a criminal offense under § 238 German Criminal Code). The plaintiffs could not unequivocally clarify the male plaintiff's involvement in the establishment of the F-Internetforum. The male plaintiff himself conceded having been involved in the “setup” of the F-Internetforum; furthermore, an email redirection system he had established via the F-Internetforum to himself remained active weeks after the forum's inception. Beyond his own, albeit generally worded and sweeping assertion, affirmed by affidavit, that he had no connection to the F-Internetforum, the male plaintiff presented no substantiated evidence for the groundlessness of the accusations made against him – and at least indirectly, in the form of his wife's, the female plaintiff's, complicity. Consequently, the defendant was not obliged to infer a patent and immediately apparent legal violation from the challenged statements.
Judgment of the Federal Court of Justice of February 27, 2018 – VI ZR 489/16
Lower Courts:
District Court of Cologne of august 16, 2015 – 28 O 14/14
Higher Regional Court of Cologne of October 13, 2016 – 15 U 173/15
Judgment of the Federal Court of Justice of February 27, 2018 – VI ZR 489/16
Source: Press Release of the Federal Court of Justice of February 27, 2018
GoldbergUllrich Attorneys at Law 2018
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
