In its ruling of 28.07.2015 (case reference: VI ZR 340/14), the Federal Court of Justice once again had to deal with the issue of “Stoererhaftung” (Breach of Duty of Care).
Does the person responsible for a false report disseminated online have a duty to work towards its deletion on third-party websites?
The Federal Court of Justice affirms that there is liability for interference for the dissemination of false reports by third parties.

Working towards the deletion of false reports

Affected parties may object to untrue factual allegations that are likely to disparage public reputation in an inadmissible manner by applying Sections 1004, 823 para.
1, para.
2 BGB in conjunction with. §§ Sections 185 et seq. of the German Criminal Code, 824 of the German Civil Code.
In principle, they can not only demand the cessation of further disturbances, but also the elimination of a situation of continuing reputational damage created by the untrue factual allegations.
In order to eliminate such a situation, those affected can not only demand that the disruptive party delete the content.
At the same time, the disturber must work towards having the false reports available on the Internet deleted.
By “working towards” the deletion of the untrue factual claims, the obligation is to be understood as the duty to influence the operators of the internet platforms on which the challenged statements are still available, as far as possible and reasonable, in order to induce them to remove the illegal content.

Requirements for the request for deletion

However, as a means of ending a continuing impairment of reputation, the request for deletion asserted in the context of a claim for removal is dependent on the existence of certain conditions.
The deletion or working towards the deletion of factual claims available on the internet can only be demanded if and to the extent that the claims complained of are demonstrably false and the requested remedy is suitable, necessary and reasonable for the disturber, taking into account the legal positions of both parties, in particular the severity of the impairment.
In the case to be decided by the BGH, the deletion of the entire article was not necessary to protect the reputation of the affected party from the continued effect of any unlawful impairment.
This was because the article contained a large number of statements that were either obviously correct or in any case had not been objected to as incorrect and therefore did not infringe the rights of the person concerned.
On the other hand, the Senate considered it necessary to work towards the deletion of individual passages of the article.

Liability for false reports even without fault

According to the BGH, anyone who publishes the false report on the internet is also responsible for the unlawful disruption.
A disturber within the meaning of Section 1004 BGB is anyone who has caused the disturbance or whose conduct gives rise to fear of a disturbance, regardless of whether they are at fault.
Both the direct disturber, who has adequately caused the disturbance through their own conduct, and the indirect disturber, who has in some way intentionally and adequately contributed to causing the unlawful disturbance, are covered by the standard.
According to the judges, the initial publication of the false report on the internet is the decisive cause for the subsequent publication.
It is in the normal course of events that a post is republished by third parties even without the author’s involvement, as reports are typically linked and copied on the internet.
According to the case law of the Senate, a violation of the general right of personality of the person concerned is therefore also attributable to the author of the false report available on the Internet insofar as it was caused by the redistribution of the original post by third parties on the Internet.