BGH decides on delisting request against Google

The VI. Civil Senate of the Federal Court of Justice, which is responsible for claims under the EU General Data Protection Regulation, among other things. Civil Senate of the Federal Court of Justice has to decide on the question under which conditions the operator of an Internet search engine is obliged to exclude search results that are relevant to privacy rights.

Facts:

The plaintiff works for or is involved in various companies offering financial services in a responsible position. The plaintiff is his partner and was an authorized signatory of one of these companies. On the website of a U.S. company whose goal, according to its own statement, is “to make a lasting contribution to fraud prevention in business and society through active education and transparency,” several articles appeared in 2015 that took a critical look at the investment model of some of these companies. One of these articles was illustrated with photos of the plaintiffs. For its part, the website operator’s business model was reported critically, including the accusation that it tries to blackmail companies by first publishing negative reports and then offering to delete the reports or prevent the negative reporting in exchange for a so-called protection money. The plaintiffs claim that they were also blackmailed; moreover, the articles contained incorrect factual allegations and inadmissible expressions of opinion based on an incorrect factual core. They request the defendant as the responsible party for the internet search engine “Google” to refrain from displaying the mentioned articles in the list of results when searching for their names and the names of various companies and from displaying the photos of them as thumbnails. The defendant has stated that it is unable to assess the truth of the claims made in the linked content.

Previous process history:

The landgericht dismissed the action. The plaintiffs’ appeal was unsuccessful. It was not clearly recognizable to the defendant that the articles it proved as search results contained untrue allegations. The reproduction of the photos was justified because of their original context. In their appeal, which was allowed by the Court of Appeal, the plaintiffs continue to pursue their claim for delisting.

The Federal Court of Justice suspended the proceedings by order of July 27, 2020 (NJW 2020, 3444 = AfP 2020, 496) and referred two questions to the Court of Justice of the European Union for a preliminary ruling. On the one hand, he wanted clarification as to who bears the burden of presentation and proof for the allegation that the reporting proven by the search engine is untrue, and whether it is incumbent on the applicant in this respect, if possible, to first make a claim against the person responsible for this. Secondly, he asked whether, with regard to the thumbnails, their original context should also be taken into account or whether it was solely the search engine’s presentation that mattered.

The Court of Justice of the European Union answered these questions in its judgment of December 8, 2022 (C-460/20, NJW 2023, 747 = AfP 2023, 42). The delisting would not depend on the question of the accuracy of the listed content having been resolved, at least provisionally, in the context of an appeal brought by that person against the content provider. The search engine operator is obliged to grant a delisting request if the person requesting a delisting submits relevant and sufficient evidence to support his request and proves that the information contained in the listed content is obviously incorrect or at least a part of this information that is not insignificant for this entire content is obviously incorrect. With regard to the thumbnails, the informational value of those photographs must be taken into account, regardless of the context of their publication on the website from which they are taken, but taking into account any textual element directly associated with the display of those photographs in the search results and which may provide information about the informational value of those photographs.

The Federal Court of Justice will now continue the oral proceedings.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.