Search Engine Liability

Now that the Google and its fellow search engines are possibly heading for a new form of liability in the UK, what’s life like for search engine providers in Germany? Well, as usual, it’s complicated.

The question of Google’s responsibility for what one may find when searching for a particular set of terms has been dealt with by a variety of court decisions on appeal court level (our “Oberlandesgerichte”) and even once by the German Supreme Court (Bundesgerichtshof). Interestingly, though, the problem that one would think is the most common problem that people have with the search engine phenomenon has not really been dealt with by the courts. We know that Google is generally allowed to display thumbnails of copyrighted images on its image search site. We have been informed that Google is not liable for the “snippets” that appear as a result of one’s search. But we don’t know what Google is required to do (if anything) when being informed of a clear violation of someone’s, say, protected private sphere committed on the internet and spread through tools like Google’s search engine.

Can Google argue that its search engine service is akin to what Internet access providers do for their customers (which appears to be Google’s position with regard to Germany)? In that case Google wouldn’t to do anything at all under current German law.

Or is Google more like a host provider? In that case… we actually don’t know what the law is at the moment. Until now the courts in Germany have – in a nutshell – held that once the host provider has been made aware of certain illegal content it is required to take it down and (a peculiarity of German Internet law) take all reasonable steps to ensure that the infringing content (or similar infringing content, actually) does not reappear. If it does, and if it can be shown that not all reasonable steps have been taken, the injured person can take the provider to court based on a cease-and-desist claim. Of course, the problem with such cases is: How do you define the term “reasonable steps”? The courts in Germany have never been able to agree on anything resembling a generally accepted answer. Some courts (most notably the Hamburg courts) have effectively said that a provider needs to apply a mixture technical (filter) measures and manual processes that work and, if that proves impossible or too expensive, close its business. Other courts, notably the Oberlandesgericht Duesseldorf, have been more liberal.

It may well be, however, that the courts will have to change their “German approach” to provider liability anyway due to the recent verdicts of the ECJ against content filtering systems in the Scarlet Extended and Netlog cases. It is difficult to see how German courts should be able to stick to their preference for filtering following the very sceptical view expressed by the ECJ. On the other hand, it isn’t as if that has kept the Joint Committee on Privacy and Injunctions from advocating far reaching filtering requirements. And the ECJ has not ruled that any and all filtering requirements are contrary to European Law, just such filtering requests that do not

[respect] the requirement that a fair balance be struck between the right to intellectual property [should be similar with respect to other rights], on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other (…).”

So we’ll have to wait and see…


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