On May 15, 2013, in a case filed against Google by an entrepreneur selling dietary supplements and cosmetics (the “Plaintiff”), the German Federal Court of Justice in Karlsruhe (Bundesgerichtshof, the “Federal Court”) ruled that Google must remove any defamatory suggestions generated by its autocomplete search function. The Federal Court overturned an earlier ruling by the Cologne Higher Regional Court (Zivilkammer des Landgerichts Köln) favoring Google.
The Plaintiff claimed that, when his name is entered into Google’s German-language search field, Google’s autocomplete search function offers defamatory suggestions linking him to “Scientology” and “fraud”. The Plaintiff claimed that he is not involved with Scientology and that he has never been accused of, or investigated for, fraud. He also observed that the search results generated by the autocomplete suggestions did not present or support any such connections. The Plaintiff sought an injunction against Google to block the autocomplete suggestions, as well as monetary damages for defamation of his personality rights and business reputation.
While the Cologne Higher Regional Court held that no intelligible meaning can be attached to such autocomplete suggestions, the Federal Court disagreed. The Federal Court found that the search suggestions offered by the autocomplete function implied a factual connection between the Plaintiff and the suggested terms, and stated that search engine operators are responsible for defamatory autocomplete suggestions once they become aware of or have been alerted to such violations of personality rights and reputation. Once they become aware or are alerted, search engine operators have the responsibility under German law to remove such autocomplete suggestions and prevent any further violations.
The case is currently being re-examined in the Cologne Higher Regional Court on remand to determine whether the autocomplete suggestions are in fact defamatory and infringe the personality rights and the honor of the Plaintiff. This means that the Cologne court will have to determine whether the suggestions at issue are factually correct, that is, whether there are facts justifying the association of the Plaintiff with the terms suggested by Google’s autocomplete function.
When a user enables Google’s autocomplete function, lists of search queries appear automatically as such user begins typing a search term. This function expedites the search process, helps to avoid spelling mistakes and allows the user to view popular searches featuring the same search term. If a user is signed into his or her Google Account and has Google’s “Web History” feature enabled, Google’s autocomplete suggestions will also incorporate the user’s own past searches. According to the information provided on Google’s Inside Search Help, these “useful” suggestions are “a reflection of the search activity of all web users and the content of web pages indexed by Google.” Autocomplete suggestions are generated by Google’s algorithms “based on a number of factors (including popularity of search terms) without any human intervention.” The queries presented may therefore include “silly or strange or surprising terms and phrases.” Google explains that, while it strives to “reflect the diversity of content on the web (some good, some objectionable),” it also applies “a narrow set of removal policies for pornography, violence, hate speech, and terms that are frequently used to find content that infringes copyrights.”
In its decision, the Federal Court ruled that the search suggestions offered by the autocomplete function suggest a factual connection between the Plaintiff and the terms “Scientology” and “fraud.” These terms have “negative connotations.” The Federal Court characterized Scientology as a “sect” that has a negative public perception due to unflattering media coverage. As for the term “fraud,” the Federal Court observed that, while the average Internet user may not be familiar with the precise meaning of this legal term, he or she is likely to associate the term with morally reprehensible conduct.
The Federal Court also noted that Google presents its autocomplete function to its users as a service that contains suggestions based on searches most often made by other users of Google’s search service. This creates the expectation that search results based on such autocomplete suggestions will be helpful to users because they reflect actual searches. Hence, the autocomplete suggestions at issue here may imply a factual connection or link between the Plaintiff and the two negatively perceived terms.
The Federal Court concluded that, if the associations with the search terms were wrong, the autocomplete function would constitute an infringement of the Plaintiff’s personality rights and reputation protected under Articles 823(1) and 1004 of the German Civil Code, in conjunction with Article 7(1) of the German Telemedia Act.
The Federal Court also held Google responsible for the function because the search word combinations at issue were generated by Google’s own technology. The Federal Court emphasized that search engine operators are not required to regularly police content or check whether the content generated by algorithms is free of violations. Such an obligation would render the operation of a search engine impracticable, if not impossible. While automated filters should be applied for specific areas (such as child pornography), search engines cannot prevent all possible violations of individuals’ rights via the autocomplete function. However, once an operator becomes aware of unlawful violations of such rights, then it becomes responsible for removing the objectionable terms from its automated search suggestions and for preventing such violations from occurring in the future. The Federal Court’s approach indicates that individuals now have a legal right under German law to notify Google of any defamatory autocomplete search suggestions that infringe their personality rights and demand the immediate removal of such suggestions.
Although the Federal Court’s ruling may be surprising to U.S. readers, we note that this ruling is consistent with earlier decisions in Italy (Tribunale Ordinario di Milano, March 24, 2011, 10847/2011, see link to the order (unofficial source)) and France (Cour de cassation – Première chambre civile, Arrêt n° 832 du 12 juillet 2012 (11-20.358)) holding search engine operators responsible for claims arising from search-related functionality.