Infringement of personality rights by Google?

The Federal Court of Justice (BGH) had to decide whether the host provider based in the USA is liable for statements of fact which a third party published in a blog on its servers.

The company Google, based in California, provides the technical infrastructure and storage space for the websites www.blogger.com and www.blogspot.com. Google acts as a host provider for the blog created by a third party on this platform. On this blog, false and defamatory statements of fact about a German consumer were posted on the internet, which the consumer sought to have deleted with a claim for injunctive relief on the grounds of infringement of personality rights against the host provider.

The first two instances ruled in favour of the consumer, so Google lodged an appeal with the BGH.

Court decision
The Federal Court of Justice (BGH) decided byJudgment of 25.10.2011 – Az. VI ZR 93/10, that the host provider is liable for the false statements of fact under certain conditions.

As a general rule, the consumer's objection must first be forwarded to the third party responsible for the blog for a statement. If a statement is not forthcoming within an appropriate period, the objection is to be presumed to be justified, so that the blog entry must be deleted.

If the third party responsible for the blog casts credible doubt on the justification of the objection with plausible arguments, the provider is generally required to inform the consumer of this and, if necessary, request evidence from which the alleged infringement of rights emerges. If a statement by the consumer is not forthcoming or if the consumer cannot provide evidence of the infringement, the host provider does not have to carry out any further examination. If the evidence shows that there is an unlawful infringement of personality rights, the objectionable entry must be deleted.

By this decision, the BGH remitted the case to the court of appeal. The latter must now decide the present legal case taking into account the criteria established.

Conclusion

Host providers such as Google have received clear procedures from the Federal Court of Justice (BGH) regarding possible infringements of personality rights by their users. According to the principles established by the BGH, host providers may act in breach of contract if, as hitherto, they immediately delete the corresponding comment upon receipt of complaints, instead of first enquiring with their customer. Under this BGH judgment, the host provider is obliged to attempt to clarify the facts in order then to make a decision on whether to delete the entry. If this is omitted, they are also liable for infringements by third parties.