Google liable for Autocomplete function

In the previous year, the Federal Court of Justice (BGH) decided that the Google Autocomplete function, through its search term completions, could violate the personality rights of the affected party, since the search term completions have a tangible informational content. Consequently, the Higher Regional Court of Cologne (OLG Köln) had to address the question of whether Google, when faced with a specific complaint regarding the Autocomplete function, had sufficiently complied with its obligations to review.

The claimant was a company that distributes nutritional supplements and cosmetics on the Internet, as well as its founder and chief executive officer. The reason for this was that when the name of the chief executive officer was entered into the Google search box, it was automatically complemented with the terms "Scientology" and "fraud". As a result, both the company and the chief executive officer himself felt violated in their personality rights and business reputation, as the chief executive officer had no connection to Scientology whatsoever and no fraud could be attributed to him.

In the first instance, the action for injunction and damages as well as pre-litigation attorney's fees was dismissed. The appeal was also unsuccessful. Upon the appeal allowed by the appellate court, the Federal Court of Justice (BGH) set aside the appellate judgment and remitted the matter to the appellate court for new proceedings and decision. In its reasoning, the BGH stated that the search term completion violated the personality rights of the affected parties. This violation was also directly attributable to Google, as the computer program created by Google had evaluated user behaviour and thus submitted corresponding search suggestions. The BGH did not derive a general liability of Google from this. The BGH also did not assume that Google was obliged to review all search completion suggestions for any possible violations of rights. However, upon becoming aware of the violation of rights, Google would be obliged to prevent such violations in the future. The Higher Regional Court of Cologne (OLG Köln) therefore had to examine in the course of its decision whether Google had properly complied with this obligation.

Court decision

The Higher Regional Court of Cologne (OLG Köln) ultimately ordered Google to cease the search term completion "Scientology" in connection with the name of the chief executive officer, to the extent that the claim was attributable to the personality rights violation of the chief executive officer. Google had not sufficiently complied with its obligations to review specific complaints in this regard, as a specific review was refused based on the email of the affected party. According to the court's reasoning, this refusal constitutes the violation of the review obligation required for the injunctive relief claim. Beyond that, however, no review obligations were violated, as Google only became aware of the further violations of rights upon service of the preliminary injunction. Claims for injunctive relief by the company are therefore excluded in this respect. The same applies to the chief executive officer's claim for injunctive relief in connection with the search term completion "fraud". Claims for payment of monetary compensation beyond the corresponding pre-litigation legal costs were denied by the court on the grounds that there was no serious infringement.

Summary

The judgment of the Higher Regional Court of Cologne (OLG Köln) is a necessary consequence of the Federal Court of Justice (BGH) decision and is therefore comparable to the existing case law on provider liability. Like a hosting provider, Google is liable for breaches of rights only from the moment of becoming aware of them, lacking any duty to monitor. After the breach of rights has been reported, Google is obliged to review it and take measures to prevent the violation of rights in the future. If Google fails to meet this obligation, the affected party may assert a claim for injunctive relief.