This morning, the Federal Supreme Court (Bundesgerichtshof) has held Google liable for a functionality of its search engine, the autocomplete function. The claimants had requested that Google ceased the publication of autocomplete results that suggested “fraud” or “Scientology” as additional search terms when the claimants’ names were searched. Google will now have to stop the publication of such “predictions” if and when it has become aware that automatically created predictions infringe the rights of third parties.
The predictions of additional search terms are generated automatically by a Google algorithm, based inter alia on the search terms entered by Google users. Google has been using the function since April 2009.
Google has been taken to court across the globe on this issue, winning in Italy in March 2013, and loosing in Japan in April 2013, for example. Today’s ruling appears to be the first one from a court of last instance. And if Google were not enough to get the matter into the headlines: Germany’s former first lady, Bettina Wulff, had commenced a similar action, which had been stayed, pending the outcome in today’s case. Bettina Wulff is seeking to stop the publication of autocomplete results linking her to search words such as “escort” or ” red light”. Her case had triggered a broad debate about the legal limits on the publication of search results.
The Court of Appeals (Oberlandesgericht) Köln had found, in the previous instance, in favour of Google. It did not attribute the “statements” generated by the autocomplete function to Google (“Den […] Ergänzungssuchbegriffen ist nicht der Charakter eigenständiger inhaltlicher Aussagen der Suchmaschine bzw. deren Betreibers […] beizumessen.”)
The Federal Supreme Court did not agree. Its line of arguments is as follows: The publication of predictions as a result of the autocomplete function constitutes a violation of personality rights (Persönlichkeitsrecht), if they imply a statement that is untrue. On the other hand, not every violation of personality rights by the search engine triggers Google’s liability. The autocomplete function per se is perfectly legal. The issue is the missing safeguard against the publication of results of a defamatory nature (“… dass sie keine hinreichenden Vorkehrungen getroffen hat, dass die von der Software generierten Suchvorschläge Rechte Dritter verletzen.”)
The Federal Supreme Court also does not find that there is a general duty to scrutinize the search results for potential infringements of third party rights prio to publication (“Der Betreiber einer Suchmaschine ist regelmäßig nicht verpflichtet, die […] Suchergänzungsvorschläge vorab auf etwaige Rechtsverletzungen zu überprüfen.”)
This duty is only triggered if and when Google becomes aware of a violation of third party rights. In practice, Google will now have to investigate the defamatory or slanderous nature of suggested search terms if a cease and desist letter comes in, and will then have to take appropriate action.
Technically, the claimants’ right to request Google to cease and desist is based on Sec. 823, 1004 German Civil Code (BGB) and Art. 1, 2, Basic Law (Grundgesetz), that is, on a combination of civil law tort concepts, and the fundamental rights of human dignity and personal freedom. The Federal Supreme Court does weight the respective rights of claimants on the one hand and Google’s rights, which also enjoy constitutional protection, and on balance, finds in favour of the claimants. I refrain from a personal comment on the matter, since my firm acts for one of the parties involved.