Google Cache as a contractual penalty trap

How far do the debtor's obligations extend after submission of a declaration containing a contractual penalty for cessation? The Higher Regional Court (OLG) Düsseldorf had to decide whether the debtor must also ensure the deletion of the infringing content from the Google Cache.

The defendant, who operates in the motor vehicle sector, advertised on his website with the indication "TÜV special entry". The claimant considered this to be misleading advertising and issued him a notice to cease and desist. The claimant is of the view that the defendant, lacking authorisation under the StVZO, is not permitted to provide "TÜV special entries" and thus state-relieving activities. Advertising with this would constitute unfair competition through deception of the relevant sectors of the public.

The defendant undertook in a declaration containing a contractual penalty, to cease and desist from "advertising in the course of trade with the indication "TÜV special entry" or a designation of equivalent content, insofar as this service is not lawfully offered."

However, the disputed advertising remained discoverable via the Google Cache. The claimant asserted a claim for the contractual penalty.

The defendant is of the opinion that he should not be liable for the actions of third parties. He did not cause the entries. After all, there was no longer any indication of "TÜV special entries" on his homepage.

Court decision on Google Cache

The judges of the OLG Düsseldorf (Judgment of 03.09.2015 – Az. I 15 U 119/14) take, as did the OLG Celle in January of this year (we reported), the view that deletion of the Google Cache is required.

Although the debtor need not generally be responsible for the actions of third parties, if the action of the search engine operator confers an economic benefit on the debtor, then the debtor is obliged, within the scope of his legal and factual possibilities, to influence the operator of the search engine. This obligation also extends to removal from the Cache.

Conclusion

Anyone who submits a declaration of cessation should definitely check whether the disputed entry can still be found when searching via the Google Cache and should then take steps to ensure deletion from the Cache. Otherwise, there is a risk of forfeiture of the contractual penalty.