Google delisting due to data privacy?

On June 16, 2020, at 9:30 a.m., the German Federal Court of Justice will rule in two cases on whether there is a claim against Google to no longer be listed in search results.

Proceedings VI ZR 405/18:

The plaintiff here was the managing director of a regional association of a welfare organization. In 2011, this regional association had a financial deficit of almost one million euros; shortly before that, the plaintiff called in sick. Both were reported in the regional daily press at the time, with the plaintiff’s full name mentioned. The plaintiff now requests Google to refrain from reproducing these press articles in the results list when searching for his name.

The landgericht dismissed the action. The plaintiff’s appeal was unsuccessful. The requirements for a right to delist pursuant to Art. 17 para. 1 GDPR are not given. It is true that the press articles linked by the defendant contained health data of the plaintiff within the meaning of Art. 9 para. 1 GDPR. However, the processing of the data by the defendant was necessary for the exercise of the right to freedom of expression and information (Article 17(3)(a) of the GDPR). The necessary balancing of fundamental rights in this respect leads to the result that the data processing of the defendant is lawful.

Proceedings VI ZR 476/18:

The plaintiff in these proceedings holds responsible positions for or participates in various companies that offer financial services. 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 to have been extorted as well. They are now also requesting Google to refrain from displaying the said 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”. Google essentially disputes Plaintiffs’ allegation that the reports about them are untrue.

The landgericht dismissed the action. The plaintiffs’ appeal was unsuccessful. Since a search engine operator – according to the Higher Regional Court – has no legal relationship with the authors of the content shown in the results lists, it is not possible for it to determine and evaluate the facts of the case. Insofar as the truthfulness of the alleged fact was to be the decisive factor, the burden of presentation and proof for this was therefore in any case on the party making the claim for delisting. In the case in dispute, the plaintiffs had not presented the defendant with an obvious infringement that was clearly recognizable at first glance.

In the appeals allowed by the courts of appeal, the plaintiffs are continuing to pursue their respective delisting claims.

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.