Overturning two lower court rulings the German Federal Court of
Justice (BGH) decided that the words added to a search term by
Google's autocomplete function can invade a person's
personality rights (VI ZR 269/12). Subject to certain conditions
Google therefore has to block these words.
The facts of this case were as follows:
The Plaintiff filed a claim for injunctive relief against Google
as the autocomplete function added terms like
"Scientology" or "fraud" to the plaintiff's
name when entered in the Google search engine. Whereas lower courts
denied protection on the grounds that the autocomplete function is
only based on an algorithm taking into account which terms were
often combined by other users, the BGH ruled in favour of the
According to its decision Google is responsible by displaying
the suggestions based on the autocomplete function. The
automatically added words can affect the plaintiff's
personality rights as they convey the statement that there is a
relationship between the plaintiff's name and the added
However, autocomplete suggestions with a negative connotation do
not in every case constitute a violation of personality rights. The
BGH ruled that the interests of the parties must be balanced in
each individual case. In the present case Google's freedom of
opinion and economic freedom of action oppose the plaintiff's
personality rights. And according to the BGH's finding the
latter prevails because no connection between the plaintiff and the
autocomplete suggestions can be established by facts. In contrast,
if the autocomplete suggestions were based on a factual basis,
Google's interests could prevail.
However, Google is only liable for the violation of the
personality rights, if it constitutes a breach of Google's duty
at the same time. The BGH held that there is no obligation for
Google to check all autocomplete suggestions in advance. But Google
has to block the offending words after being notified by the
affected person (so-called: "notice and take down"). This
line of argumentation concurs with earlier BGH decisions addressing
the liability of eBay for infringing offers and the liability of
online forum operators. It therefore underlines the court's
rather coherent approach with respect to the liability of online
This publication is intended as a general overview and
discussion of the subjects dealt with. It is not intended to be,
and should not used as, a substitute for taking legal advice in any
specific situation. DLA Piper Australia will accept no
responsibility for any actions taken or not taken on the basis of
DLA Piper Australia is part of DLA Piper, a global law firm,
operating through various separate and distinct legal entities. For
further information, please refer to www.dlapiper.com
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