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German Supreme Court – No general liability of Google for results generated by autocomplete function

The German Supreme Court (BGH) decided on 14 May that, search engine providers are potentially liable for the violation of privacy rights only after they have become aware of the unlawful violation. The German Supreme Court (BGH) decided on 14 May that, search engine providers are potentially liable for the violation of privacy rights only after they have become aware of the unlawful violation. The operator of a search engine is not regularly required to verify software generated search results in advance for potential privacy law violations (VI ZR 269/12).

Facts
The Plaintiff sued Google in relation to the results generated by the "autocomplete" feature integrated into its search engine when his name was entered as a search term. The feature automatically displayed the words "Scientology" and "fraud" as suggestions. The Plaintiff argued that his privacy rights were violated since the combination of his name and the terms automatically generated and displayed would suggest that he was related to Scientology and he was accused of fraud or an appropriate investigation initiated against him. The first instance court and the appellate court denied the Plaintiff's claims that Google should be prevented from displaying these automatic terms. 

Decision
The BGH held that the automatically generated suggestions "Scientology" and "fraud" constituted an impairment of the Plaintiff's privacy rights because they contained a comprehensible statement that, between the negatively occupied terms "Scientology" and / or "fraud" and Plaintiff, there existed a factual connection.  The Plaintiff's privacy rights would be impaired, if this statement - as alleged by him - was untrue  His constitutionally guaranteed privacy rights outweighed the interests of the search engine provider.

Nevertheless, the mere development and use of the autocomplete function did not result in a general liability of the search engine provider. Only after the search engine provider had been notified about the unlawful violation of privacy rights by a concerned person, it was required to prevent such violations in the future.  This is a similar result to the Google v Louis Vuitton decision, which concerned Google's Adwords service.

Comment 
The decision provides commercial and legal certainty for search engine providers which are not able, and should also not be forced, to police the internet for any potential violation of third party rights without having an indication that such violation might occur. Neither from the perspective of the freedom of expression nor the public interest in fostering the development of new, creative services and free access to information, would such general obligation be justified. This has now been made clear by the BGH so that all search engine providers in Germany are able to rely on the straight forward guidance of the Court.

 

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