Breach of cease-and-desist declaration through Google Cache?

Once a contractually penalized cease-and-desist declaration has been issued, the debtor faces the risk of being held liable for payment of a contractual penalty if he breaches the cease-and-desist declaration. Is a breach to be assumed even if the content that has already been removed is still findable via Google Cache?

An internet user had used a copyright-protected image of a garden hose in the context of an eBay auction.

When he received a cease-and-desist letter from the rights holder, he issued a contractually penalized cease-and-desist declaration in which he undertook not to use the image further.

Although the image was then no longer visible on eBay, it was still accessible via Google in the cache.

The rights holder saw a breach of the cease-and-desist declaration in this and sought payment of a contractual penalty in the amount of EUR 5,100.00 from the cease-and-desist debtor.

The court's decision

The Higher Regional Court (OLG) Zweibrücken decided by Urteil vom 19.05.2016 – 4 U 45/15 that a cease-and-desist debtor does not breach his cease-and-desist obligation if a copyright-protected image used unlawfully by him continues to be findable in the Google Cache after a cease-and-desist declaration has been issued. The judges from Zweibrücken thereby confirmed the dismissal of the action at first instance.

Admittedly, the cease-and-desist debtor must take all reasonable measures to prevent further legal violations – in particular, he is obliged to delete the image. Common search engines must also be checked to determine whether the photo can be found there. However, there is no obligation to monitor the Google Cache.

The court reasons this on the basis that the Google Cache is not known to the average internet user. Furthermore, a prospective buyer would not conduct a search in the cache, but would instead access the current internet page.

Conclusion

As soon as a cease-and-desist declaration is signed, the breach must be remedied. In order to avoid further legal disputes, measures should be taken – despite the judgment from Zweibrücken – to effect deletion from the cache. For there have indeed been contrary court decisions on this subject – see Urteil OLG Celle and Urteil OLG Düsseldorf.