Court of Justice: No general right to be forgotten

Federal Court of Justice

The BGH has specified the framework conditions with regard to the deletion from the results of search engines (right to be forgotten"). The appeal of a former managing director of a welfare association was rejected, in the case of two businessmen, however, two questions were forwarded to the ECJ.

In this way, the BGH made it clear that Google must not be generally forbidden to display older negative content about a person in its hit lists. In the first case, it was a request for the revision of a former managing director of a welfare association. The association faced a deficit of around one million euros in its 2011 annual report, shortly before the complainant had reported sick. Both were widely reported in the regional press, both with full names of the plaintiff and details of his health. With the lawsuit, the man wanted to ensure that the disputed reports are no longer displayed in the search results of Google.

Equal consideration

The lawsuit was dismissed by the District Court of Frankfurt am Main in October 2017 and again in 2018 at the subsequent appeal before the Higher Regional Court of Frankfurt am Main. As a result, the case ended before the VI responsible for claims under data protection law, among other things. Civil Senate of the Federal Supreme Court (VI ZR 405/18), which has now also rejected the plaintiff’s appeal, which was admitted by the Court of Appeal.

The BGH clarified that the right to freedom of expression on the one hand and the protection interests of the person concerned on the other hand had to be weighed equally. It also follows, however, that the person in charge of a search engine does not have to take action until he becomes aware of an obvious and at first glance clearly recognizable infringement of the data subject". Therefore, the interests of the defendant and its users, as well as those of the public and the media responsible for the linked newspaper articles, would be more serious, In addition, in this case the continued legality of the linked reporting is of decisive importance for the request to withdraw the defendant, according to the BGH in its reasoning.

In another case (VI ZR 476/18), a Financial Services Manager acting in a position of responsibility or having an interest in various companies as well as his partner acting as a proxy officer in one of these companies filed suit. On the website of a US company committed to fraud prevention, several articles appeared in 2015, which critically examined the investment model of individual of these companies, where one of the articles was provided with the picture of the claimants. In the past, however, the operator of the website was also critically reported: So the accusation was in the room that they tried to blackmail companies by first publishing negative reports and then offering them, against a so-called. Protection money to delete the reports or to prevent negative reporting. The plaintiff claimed to have also been blackmailed by the operator.

The question of the context

Before the Cologne Regional Court, both plaintiffs wanted to ensure that Google would in future be prohibited from displaying the aforementioned articles in the search for their names and the names of various companies as well as their images in reduced form of thumbnails in the results. Google as the defendant, on the other hand, stated that it could not judge the truth of the claims made in the linked content. The district court dismissed the complaint, and the plaintiffs' appeal was unsuccessful.

The Federal Court of Justice has now

suspended the proceedings and referred two questions to the European Court of Justice for a preliminary ruling. In the first instance, the ECJ is to clarify whether the claimant in a reasonable manner, for example by means of an injunction, Obtain legal protection against the content provider and thus subject the truthfulness of the content issued by Google to at least a preliminary examination. The second question deals with the question whether the context of the original publication should be taken into account in the event of a possible listing from Google’s search catalog, even if the third party’s website links to the preview image in the results, but is not specifically named and the resulting context is not displayed.

Courts have been busy for six years

The "right to forget" introduced in 2014 has repeatedly led to legal disputes in recent years. The first ruling of the same year ended the legal dispute of a Spaniard, in which Google, using his name as a search term, referred to two newspaper articles from 1998, in which the financial problems of the plaintiff at that time were addressed. However, these should no longer have played a role at the time of the complaint and should therefore no longer be disseminated. Google had to remove search results for the first time under the new right.