For example, people can defend themselves against the fact that search engines like Google display questionable articles about them in the hits. But they must provide “relevant and sufficient evidence” that the information contained therein is obviously incorrect – or at least a part that is “not insignificant for the entire content”. The Federal Court of Justice (BGH) decided on Tuesday in Karlsruhe. (Ref. VI ZR 476/18)
However, the operators of the search engines are not obliged to investigate this themselves and to remove hits with possibly incorrect information from the lists or even to approach those affected. This harbors the risk that links that are actually not objectionable and are relevant for public information will no longer appear – because the operators want to save themselves the investigative work, explained the presiding judge of the sixth civil senate at the BGH, Stephan Seiters.
The top civil judges in Germany followed a ruling by the European Court of Justice (ECJ).
According to Seiters, the effort that those affected have to make to prove incorrect information should be reasonable. What that means exactly and when evidence is relevant and sufficient enough must be checked for each individual case. The matter is clear when a judgment confirms that the information is not true. In addition, a basic requirement is that personal data appear at all in a text that is the subject of the complaint.
Reemt Matthiesen, a lawyer at the international commercial law firm CMS Germany, spoke of quite high hurdles. The so-called delisting cannot take place “on demand”.
Attorney Christian Solmecke from the law firm WBS.Legal called the judgment a clear victory for Google. The BGH creates clarity for those affected. “But it also makes it harder for them to remove false reports about them from Google search results.” After all, those affected are helped by the previous ECJ ruling, according to which it is not necessary to first sue the author of a possible false statement before you can turn to Google.
In this specific case, it was about a couple from the financial sector who saw themselves slandered on the Internet. The plaintiffs wanted several critical articles about their investment model to stop appearing as hits when you search Google by their names.
A US website had published the texts. Its operator was in turn accused of specifically launching negative reports in order to blackmail those affected.
Google did not remove the links to the articles. The reason given was that it was not possible to judge whether there was anything to the allegations.
The Cologne Higher Regional Court, as the court of appeal, decided in 2018 that Google may continue to display most of the texts in question. The plaintiffs failed to demonstrate an obvious violation of rights in the required manner.
The BGH supported this decision and largely rejected the appeal by the plaintiffs. However, he agreed with them that no photos with them without any context may be displayed in the hit lists – so-called preview images (“thumbnails”).
Without context, just taken by themselves, the photos are not meaningful, explained Richter Seiters at the announcement. Here the right to one’s own picture prevails – even if one clicks to get to the page with the corresponding texts. The display of such thumbnails was therefore not justified.
Attorney Matthiesen explained: “The assessment of the delisting of texts and thumbnails can therefore differ in the future.”
The fact that the ECJ dealt with the topic is also due to the procedure: The BGH consulted it in 2020 because there are uniform standards for data protection across the EU. The Luxembourg decision on this has been available since December 2022, the core statements of which the BGH has now transferred to the specific case.
If the information is true, the publication should be accepted anyway, Seiters continued. Nothing else then applies to photos that have been published with the text.
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