The Regional Court of Frankfurt am Main ruled on February 9, 2017 (Ref.: 2-03 S 16/16) that the search engine operator Google is liable as a disturber for the unauthorized publication of photos by third parties. However, liability only arises, of course, once the legal situation is known. The privileged status of access providers under Section 8 TMG does not apply to search engines.
Google shows infringing link in search results
The plaintiff, a former managing director of a GmbH, requested the deletion of two links from the search engine operator Google. Both links referred to a homepage that contained an unauthorized photo of the managing director and reported negatively about him.
Google, on the other hand, refuses to delete the links from the search results. In their opinion, the plaintiff has the burden of proof that the photo was published without the consent of the managing director. Furthermore, he must first contact the website operator and arrange for the deletion. This is because Google, as a search engine operator, is only subsidiarily liable as an indirect tortfeasor.
LG: Google liable for photo publication from knowledge as indirect interferer
The execution of Google Inc. did not convince the Frankfurt judges. They ordered Google to remove the infringing links, §§ 823 para. 1, 1004 BGB analogously, § 22, 23 KUG. The publication of the photo interfered with the managing director’s right to his own image and Google was responsible for the infringement as an indirect disturber. However, Google does not have to check the links displayed in the search results itself.
Specific reference is sufficient for acknowledgement
Contrary to Google’s opinion, the infringed party does not have to prove that there was no consent to the publication of the photo. Rather, it is sufficient that the infringed party specifically informs the search engine operator Google of the infringement and that this is also obviously recognizable for Google in the course of a brief examination.
The reason for this burden of proof rule is that the lack of consent is a negative fact that fundamentally reduces the burden of proof on the infringed party. This is because only the operator of the website with the unlawfully published photo can provide proof. However, this proof is not tangible for the infringed party and Google, which is why it is sufficient to credibly inform the indirect interferer.
At the same time, the LG places far-reaching requirements on the search engine operator to provide information. For example, the infringed party must provide comprehensive and detailed information about the facts of the case so that the alleged infringement is clear in fact.
However, the unacceptable impairment of the infringed party must also be obvious from a legal point of view. Due to this requirement, the injured party may not limit himself to naming the offending links and claiming that his personal rights have been violated by this content.
No privilege for search engine operators (Google) under Section 8 TMG
Furthermore, according to the LG, Section 8 TMG is not applicable to search engine operators – such as Google. This is because the operation of search engines is not limited to the transmission of third-party information or the provision of access to such information. Rather, the pages found are stored as a copy in the “cache” and kept there for quick retrieval.
This means that Google and other search engines are not neutral towards the content, as an internet access provider would be. The latter merely forwards the data. For this reason, they have practically no influence on the information retrieved or transmitted by the user. Search engines, on the other hand, do have an influence on their search results and how they are sorted.