Overturning two lower court rulings the German Federal Court of Justice (BGH) decided that the words added to a search term by Google’s autocomplete function can invade a person’s personality rights (VI ZR 269/12). Subject to certain conditions Google therefore has to block these words.
The facts of this case were as follows:
The Plaintiff filed a claim for injunctive relief against Google as the autocomplete function added terms like “Scientology” or “fraud” to the plaintiff’s name when entered in the Google search engine. Whereas lower courts denied protection on the grounds that the autocomplete function is only based on an algorithm taking into account which terms were often combined by other users, the BGH ruled in favour of the plaintiff.
According to its decision Google is responsible by displaying the suggestions based on the autocomplete function. The automatically added words can affect the plaintiff’s personality rights as they convey the statement that there is a relationship between the plaintiff’s name and the added terms.
However, autocomplete suggestions with a negative connotation do not in every case constitute a violation of personality rights. The BGH ruled that the interests of the parties must be balanced in each individual case. In the present case Google’s freedom of opinion and economic freedom of action oppose the plaintiff’s personality rights. And according to the BGH’s finding the latter prevails because no connection between the plaintiff and the autocomplete suggestions can be established by facts. In contrast, if the autocomplete suggestions were based on a factual basis, Google’s interests could prevail.
However, Google is only liable for the violation of the personality rights, if it constitutes a breach of Google’s duty at the same time. The BGH held that there is no obligation for Google to check all autocomplete suggestions in advance. But Google has to block the offending words after being notified by the affected person (so-called: “notice and take down”). This line of argumentation concurs with earlier BGH decisions addressing the liability of eBay for infringing offers and the liability of online forum operators. It therefore underlines the court’s rather coherent approach with respect to the liability of online operators.