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) and also assess liability for the dissemination of false reports by third parties. The central question was whether the original disseminator of a false report posted online is obliged to ensure that this report is deleted from third-party websites. This ruling underlines the relevance of liability for dissemination in the digital age and sets out specific standards for the conditions under which liability for the dissemination of false information applies.
In this case, the Federal Court of Justice affirmed liability for interference and therefore also liability for the dissemination of false reports by third parties. The ruling shows that the person who publishes a false report can be held liable not only for the original publication, but also for the dissemination of this report on other platforms.
Working towards the deletion of false reports and liability for dissemination
Affected persons whose reputation is impaired by untrue factual allegations are entitled to protection under civil law pursuant to Sections 1004, 823 (1), (2) BGB in conjunction with Sections 185 et seq. §§ Sections 185 et seq. of the German Criminal Code (StGB), 824 of the German Civil Code (BGB). In the context of liability for dissemination, they can not only demand the cessation of future disruptions, but also the elimination of the situation that has arisen as a result of the damage to reputation. This liability for dissemination means that the author of the original false report must actively work towards the deletion of this content by third parties in order to prevent further negative effects on the person concerned.
In order to eliminate this state of damage to reputation, the affected party can request the disruptive party to delete and intervene. Liability for dissemination obliges the original author to influence the operators of the respective internet platforms to delete the false information. Working towards the deletion includes the obligation to approach the operators of the platforms on which the false reports are available, as far as possible and reasonable, and to encourage them to remove the illegal content.
Requirements for the request for deletion
Liability for dissemination and the corresponding request for deletion depend on clear legal requirements. A claim for deletion or for the deletion of factual claims available on the Internet is only given if the following conditions are met: The allegations complained of must be demonstrably false, and the remedial measure must be 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, however, the deletion of the entire article was not necessary to protect the reputation of the person concerned from the continued effect of any unlawful impairment. The article contained several accurate statements that were not objected to and did not violate the rights of the person concerned. The Senate therefore ruled that it was only necessary to work towards the deletion of individual passages in order to meet the liability for further dissemination.
Liability for false reports even without fault
According to the BGH, anyone who causes the unlawful disturbance is to be regarded as a disturber within the meaning of Section 1004 BGB, regardless of whether they are at fault. Liability for dissemination therefore also applies if the disseminator of the false report is not directly responsible for the dissemination by third parties. Both the direct author of the false report and the indirect disturber, who is intentionally and causally involved in the dissemination, are considered to be the disturber.
According to the judges, the initial publication of the false report on the internet is a significant cause for its dissemination. In the digital context, it is common for a post to be linked to and copied by third parties without any action on the part of the author. The author of the original false report must therefore expect the possibility that third parties will copy this content. In such cases, liability for redistribution includes responsibility for the violation of the general personal rights of the person concerned if this is caused by the redistribution of the original report by third parties on the internet.
