In May 2013, the German Federal Court of Justice stated that Google’s predictions within the autocomplete function of its web search engine can violate the right of personality.[1] The right of personality ensures that a person’s (or even a company’s[2]) personality (reputation) is respected and can be freely developed.[3] Only the individual shall, in principle, decide how he/she wants to present himself/herself to third parties and the public.[4]
[5] Facts of the case [ edit ]
A stock corporation, which sold food supplements and cosmetics online, and its chairman filed an action for an injunction and financial compensation against Google based on a violation of their right of personality.[6] Google runs a web search engine under the domain “www.google.de” (among others), which allows Internet users to search for information online and access third party content through a list of search results.
In 2009, Google implemented a so-called “autocomplete” function which shows word combinations as predictions for the search of the user in a new window while typing in a search term into the search mask. These predictions are based on an algorithm which evaluates the number of searches on specific terms of other users. If users typed the full name of the chairman into the search engine in May 2010 the autocomplete function showed the predictions “Betrug” (fraud) or “Scientology”. The claimants stated that the chairman would have no connection to Scientology and that he was under no investigation for fraud. Furthermore, they argued that no search result would show a connection between the chairman and fraud or Scientology. Therefore, they saw these predictions as a violation of their right of personality.
The Regional Court Cologne decided in favour of Google and dismissed the case as unfounded.[7] The Higher Regional Court Cologne uphold this judgement.[8] The claimants filed an appeal to the German Federal Court of Justice.
[9] The decision [ edit ]
The German Federal Court of Justice set aside the judgement of the Higher Regional Court Cologne and referred the case back to this court.[10]
The Federal Court of Justice held that
the predictions (“Betrug”/”Scientology”) expressed the existence of a factual connection between the chairman and these negatively connoted terms and violated the right of personality [11] (the Higher Regional Court Cologne had taken a different view previously and had held that the predictions only expressed that other users typed in these word combinations for their search or that the terms could be found in linked third party content)
(the Higher Regional Court Cologne had taken a different view previously and had held that the predictions only expressed that other users typed in these word combinations for their search or that the terms could be found in linked third party content) the claimant's right of personality outweighed Google's freedom of expression [12] and commercial freedom [13] in a trade-off because false expressions do not need to be accepted
and commercial freedom in a trade-off because false expressions do not need to be accepted the violation was directly assignable to Google because they designed the software, exploited the user's behaviour, and suggested the predictions to the users
the national implementation [14] of the provisions of the Electronic Commerce Directive, [15] which grant intermediaries (access, caching, and host provider) immunity from liability to a certain extent, [16] were not applicable in this case because the predictions were not third party content that Google only made accessible or presented, but Google's own content
of the provisions of the Electronic Commerce Directive, which grant intermediaries (access, caching, and host provider) immunity from liability to a certain extent, were not applicable in this case because the predictions were not third party content that Google only made accessible or presented, but Google's own content the basis for a liability of the search engine provider is not the fact that he developed and used the software because these actions are protected by the provider's commercial freedom [17]
the liability can only be based on the fact that the provider did not take the necessary precautions to prevent the violation of a right of personality as part of a so-called “Stoererhaftung” (the “Stoererhaftung” (interferer's liability) is a liability of a person (the “Stoerer”) who is not a perpetrator or participant himself, but contributed willingly and adequately causally to the infringement of a protected legal interest in any way and requires a breach of a reasonable duty of care [18] )
) the search engine provider has, in principle, no obligation to monitor the predictions generated by a software beforehand and is only responsible if he becomes aware of the violation by the predictions
if the provider is notified of a violation by the victim he is also required to prevent future violations.[19]
In April 2014, the High