Germany, Federal Court of Justice, 27 February 2018 VI ZR 489/16

Identification of the case

• Respect for private and family life (art. 7 CFREU)
• Protection of personal data (art. 8 CFREU)
• Freedom of expression and information (art. 11 CFREU)

• Art. 2(1) in conj. With art. 1(1); 5(1) GG (German Constitution)
• BGB §§ 823 (2)
• BDSG §§ 4 (1), 29 (1), (2)

• Art. 7, 8, 11 CFREU

Summary of the case

The plaintiffs are a married couple, which provides IT services. In 2011, the husband helped building the ‘F-Internetforum’. As part of this service, the plaintiff set up an e-mail forward, which included his IP-address. Members of the F-Internetforum then got into disputes with members of other intent forums. Using the IP-address, members of hostile forums established the identity of the plaintiff and published comments on forums that held the plaintiff responsible for the actions of the members of the ‘F-Internetforum’. Words such as "ass-kisser", "serious criminals", "criminal villains", "terrorists", "gang", "stalker", "criminal stalker household" were used in relation to the plaintiffs. The comments also put the blame on the wife as she knew of her husband’s actions due to being part of the same household. The plaintiffs request an injunction against Google, because it enables the finding of this third party content violating the personality rights of the plaintiffs through its search results. By indexing these results, the plaintiffs claim that Google violates their personality rights as well.

• Civil judicial enforcement

Injunction against listing of certain URLs in search results

The Federal Court of Justice denies the claim of the plaintiff and holds that search machine operators only have to delist certain URLs from their search results when they receive a notification of a clear and obvious violation of someone’s personality rights. Google does not directly violate the personality rights of the plaintiffs, because it does not appropriate content of URLs by including them in its search index. Such an appropriation (which would entail liability) only occurs when the operator visibly takes responsibility for the content. Since Google does not exercise the act of indexing through webcrawlers actively, the Federal Court of Justice does not consider search machine operators as directly liable. In addition, obligations of actively reviewing third party content are considered too onerous for search machine operators. Search machine operators like Google, however, can become indirectly liable by knowingly and willingly contributing to the infringement of a personality right. According to the Federal Court of Justice, such a contribution occurs when search machine operators take no action after receiving notification of a clear and obvious breach of a personality right. The court lists several examples of clear and obvious breaches, including i.a. child pornography, hate speech, the loss of public interests through the passage through time or abusive criticism. Infringements, which are not clear and obvious, involve a balance of interests between personality rights and the right to free speech. Such intricate balancing exercises cannot be expected from search machine operators. In the present case, the insults are extraordinarily sharp and taint the honour of the plaintiffs. Nevertheless, it is not possible to ascertain the relationship and the extent of involvement of the plaintiffs with the F-Internetforum. Hence, it is not possible for Google to ensure that the allegations are not baseless. As a result, the violations of the plaintiff’s personality rights are not ‘clear and obvious’ and entail no responsibility of Google.

Role of the Charter and role of the general principles on enforcement

The Charter is applicable as it is a requirement that the legitimate interests of the plaintiffs outweigh the defendant’s. In order to define these legitimate interests, the Court refers to the applicable rights in the ECHR, the Charter and the German Constitution (the right to privacy/data protection and the right to free speech)

The Charter is applicable as it is a requirement that the legitimate interests of the plaintiffs outweigh the defendant’s. In order to define these legitimate interests, the Court refers to the applicable rights in the ECHR, the Charter and the German Constitution (the right to privacy/data protection and the right to free speech).

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• CJEU C-131712, Google Spain

Conform interpretation with EU law as interpreted by the CJEU

Give an example of a case which involves a clear and obvious infringement of someone’s personality rights

Additional notes on the decision

The present case is in line with the Federal Court of Justice’s previous case law on the liability of host providers. Scholars, however, criticize the unprecise terminology of ‘clear and obvious’ cases of violation Gouanalakis, Muer, ‘Reaktive Prüfpflichten für Google ab Kenntnis einer Offensichtlichen Rechtsverletzung’ (2018) NJW 2299, 2301). Thus, the definite impact of this case depends on the clarification of the terminology in following cases of the Federal Court of Justice.