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Digital Business Lawyer
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German court prohibits Google from linking to Lumen Database

The Higher Regional Court of Munich issued an interim injunction against Google in Case no. 18 W 826/17 prohibiting the search engine provider from linking to a third party database, the Lumen Database, which contained un-redacted links to content that had been removed from its search results. Felix Hilgert of Osborne Clarke provides an overview of the case and the wider impact.

A real estate investment fund had obtained an initial court order against Google to remove from its list of search results certain links to news reports that a court had deemed defamatory to the applicant. Google had complied with the initial order. However, links to the news reports could still be found on the Lumen Database, a third party website to which search engine operators routinely report takedown notices in an effort to foster transparency around online free speech and censorship. The search results page that otherwise would have displayed the removed links instead contained a link to a page within the Lumen Database, from where a user could reach the removed search results themselves. The applicant had notified Google that the Lumen Database was directly linking to the relevant news reports, and Google had not removed the link to the Lumen Database. The applicant argued that this defeated the purpose of the initial court order, since instead of entirely removing the infringing content from the results page, it effectively only added one extra click to the journey of a user trying to access those search results.

In its decision, the Court agreed with this argument. The Court stressed that it had jurisdiction and German law applied because the reports in question concerned a company doing business in Germany, so any defamation was liable to affect its business in that market. The Court also confirmed that the news reports in question did contain inaccurate statements liable to tarnish the applicant’s reputation, and were therefore defamatory. Finally, the Court prohibited Google from linking to the individual entry within the Lumen Database, if that entry contained a link to the removed search results. The applicant’s initial claim against the search engine regarding the removal of search results had been based on an alleged breach of a duty of care (‘Störerhaftung’). This German legal theory creates a limited responsibility for anyone contributing to a third party’s infringement of rights below the threshold of becoming a fully responsible participant in the infringement. For an online intermediary, this translates into an obligation to remove illegal third party content from its platforms once it becomes aware of it, or would have been aware if exercising proper care. However, intermediaries are neither obliged to generally monitor all third party content (this is expressly set forth in Article 15 of the E-Commerce Directive 2000/31/EC), nor are they liable for damages in view of the content, making the regime similar to ‘notice and take down’ provisions in other jurisdictions.

In the case of a search engine, the rationale for invoking its responsibility is often that where defamatory or otherwise illegal content is shared on different websites, it may be all but impossible to enforce claims against all of the operators, but visibility of such content can be significantly reduced if links to the content do not show up on the search engines. The present injunction by the Higher Regional Court of Munich takes this reduction of visibility rationale a step further. The Court expressly acknowledged that the business of operating a search engine is legitimate, and its existence is essential to any productive use of the information available on the internet. These factors should weigh in favour of the search engine and defend against extending its responsibility to the contents of the Lumen Database.

But it is also this functional role of search engines that enables the Court to take a broader view: If the search results contain links to the specific page within the Lumen Database, visibility is not really reduced - everybody knows that the search engine is only the first step to finding the desired information. Therefore, it is hardly illogical or surprising that the Court viewed linking to specific pages within the Lumen Database as making the removed search results visible again.

Consequences for intermediaries

The Court’s decision in this case illustrates the delicate balance between the protection of individuals’ and businesses’ personality rights, and the public interest in free speech and transparency of its limitations. While the provisions of the E-Commerce Directive limit the obligations that can be placed on intermediaries to monitor content, the German example shows that EU law does not necessarily bar removal obligations, at the very least where the concerned parties notify the intermediary of illegal content. Under EU jurisdictional rules, a court can assume jurisdiction easily if the search results are liable to have an impact in its territory.

It is important to note that the Higher Regional Court of Munich order does not prohibit any and all links to the Lumen Database. It only applies to a situation where a link leads to a specific Lumen Database page that contains un-redacted links to content that has already been removed from the search results page for a specific search term. It must also be noted that the nature of this Court order is that of a preliminary injunction. It remains to be seen whether this position will be confirmed by further case law. At the time of writing, the Court order was also still subject to a right to appeal.

However, even if this strict approach is confirmed, there are still possible solutions to balance the legitimate interests of potential defamation victims and intermediaries’ and the public’s interest. Intermediaries could for example redact the removed links before sharing information about takedown requests with third party databases.

Felix Hilgert Senior Associate

felix.hilgert@osborneclarke.com

Osborne Clarke LLP, Germany

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