The full judgment of the Federal Supreme Court’s judgment on Google’s autocomplete functionality for search terms was published on Friday last week – the same day, as it happens, as the English High Court judgment on the defamatory character of Sally Bercow’s tweet on Lord McAlpine.
There is little to add to the summary in my earlier posts on the ruling on the merits. From an international perspective, readers might be interested to see what the Federal Supreme Court had to say about jurisdiction and applicable law.
So why did the German courts have jurisdiction over Google. Inc., domiciled in the United States, in the first place? Pursuant to Sec. 32 German Code of Civil Procedure (ZPO), German courts have jurisdiction if the effects of the tort materialize in Germany. To meet that test, it is not per se sufficient if the claimants’ centre of interest is located in Germany. In addition, the jurisprudence of the Federal Supreme Court requires a material nexus to Germany: The content of the publications that is being challenged must trigger a conflict between the respective interests of the parties in Germany. (“[E]rforderlich ist […], dass die als rechtsverletzend beanstandeten Inhalte objektiv einen deutlichen Bezug zum Inland in dem Sinne aufweisen, dass eine Kollision der widerstreitenden Interessen […] an der Gestaltung seines Internetauftritts andererseits – nach den Umständen des konkreten Falles, insbesondere aufgrund des Inhalts der konkreten Meldung, im Inland tatsächlich eingetreten ist oder eintreten kann.”). The Federal Supreme Court found that this test had been met and that there was a nexus to Germany over and above the mere possibility to access the Google search and the autocomplete suggestions from Germany. As Google had not challenged the jurisdiction of the German courts (Sec. 39 ZPO), these remarks were not really required, but apparently, the Court wanted to make that point.
German substantive law did apply on the basis of Art. 40 Introductory Act to the Civil Code (EGBGB), the German conflicts of law provision on tort. US law (most likely California law) would have been applicable as the law of the jurisdiction where Google had committed the acts that were qualified as tortuous. However, the claimants under Art. 40 EGBGB had the right to opt for German law, on the basis that the injury was suffered in Germany, which they did.
Finally, today’s Frankfurter Allgemeine has a case note by Professor Thomas Hoeren (“Mit dem Google-Urteil hat der Bundesgerichtshof sich verrannt”), who provides a rather technical but thorough critique of the judgment and does not agree with the outcome. He suggests that Google should bring the matter to the Federal Constitutional Court (Bundesverfassungsgericht) or the ECHR on the basis that the judgment violates Google’s right to carry out its business (Grundrecht der Berufsausübung) and its right of free speech (Grundrecht der Meinungsfreiheit).