In its ruling of 19.05.2016 (case reference: 4 U 45/15), the Higher Regional Court of Zweibrücken decided that a party seeking injunctive relief is not in breach of its obligation to cease and desist if a photo it has used without authorization can still be found in the cache of a search engine.
The OLG Zweibrücken thus opposes the OLG Celle and OLG Düsseldorf.
Image can still be found in the Google cache: Breach of contract?
An online retailer had used a copyrighted image of its offered product in an eBay auction. After receiving a warning from the copyright holder, the online retailer issued a cease-and-desist declaration with a penalty clause. He undertook not to use the image any further and to have it deleted from the platform.
The image was then no longer available on the eBay platform. However, it could still be found in the cache via the Google search engine.
The author saw this as a breach of the declaration to cease and desist and demanded payment of a contractual penalty of EUR 5,100 as well as damages of EUR 750 and the legal fees incurred.
No obligation to delete an image from the Google cache
The Zweibrücken Higher Regional Court largely dismissed the claim. It is true that the infringer is obliged to no longer make the photo publicly accessible without the author’s consent. However, the injunctive relief does not also include the obligation to delete the photo from the cache of a search engine such as Google.
The reason for this is that the average Internet user is not usually aware that information on a website is temporarily stored in the search engine archive. Especially as it is not possible to access the search engine’s cache without further intermediate steps.
Extensive obligations of a claim for injunctive relief
As part of the cease-and-desist declaration, the infringer is obliged to request the internet platform eBay, for example, to remove the photograph. The common search engines must also be checked to see whether the photo can be found there. Furthermore, the infringer is then obliged to check whether his instructions to delete the copyright infringement have been followed.
With these measures, the internet retailer had also taken all reasonable precautions to prevent further copyright infringements. According to the OLG Zweibrücken, it was not reasonable for the internet retailer to check the cache of all search engines within a very short time and to have the copyright infringements still found there removed.
Caution is still advised with promises of contractual penalties!
As soon as a cease-and-desist declaration is signed, all copyright infringements must have been removed. In order to avoid further legal disputes, it is advisable – despite the judgment of the Zweibrücken Higher Regional Court – to have the copyright infringements removed from the search engine cache.
Case law in the federal states has not yet developed a uniform case law on this topic. In addition to the Higher Regional Court of Celle (judgment of 29.01.2015 – 13 U 58/14), the Higher Regional Court of Düsseldorf also considers deletion from the Google cache to be an obligation to cease and desist (judgment of 03.09.2015 – I-15 U 119/14)