Defamation / Reputation
Commonwealth v. Pon
Closed Contracts Expression
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The Oberlandesgericht München (Higher Regional Court of Munich) issued an injunction against Google Inc. prohibiting it from linking to the Lumen website from its search results because the Lumen website provided a link to an infringing statement.
The Claimant, a German company, had obtained an injunction in an earlier court case ordering Google to stop showing websites which falsely accused the Claimant of being investigated for fraud. Google removed the websites from its search results and instead provided a link to the Lumen website which contained a link to the original offending statement.
The Court reasoned that by providing a link to the Lumen website which itself provided a link to the infringing statement, Google was still performing its main function of enabling users to find websites and by providing this access was violating the Claimant’s right to publicity.
In a first proceeding, the Claimant, a German company, claimed an infringement of its right to publicity or personality (the right to control the commercial use of one’s identity) under Art. 2 Grundgesetz (German Constitution) because, in a Google search, its name in combination with the word “Betrugsverdacht” (suspected fraud) would bring up four snippets stating that a public prosecutor was investigating the Claimant for suspected fraud (§263 StGB, German Criminal Code). In fact the Claimant was being investigated for investment fraud (§264a StGB) which is a lesser offence under the Code.
After the Landgericht München (regional court of Munich) issued an injunction, Google removed the websites from its search results. However, the same Google search would then bring up a statement by Google saying: “As a reaction to a legal request that was sent to Google, we have removed one search result. You can find further information at LumenDatabase.org” The provided link would forward the user to the Lumen database, which “collects and analyzes legal complaints and requests for removal of online materials” where the link to the offending material was still available.
The Claimant asked Google to delete the link to Lumen, which Google refused to do, arguing that its highest priority was transparency. The Claimant brought a second set of proceedings in the regional court of Munich, now seeking an order against Google regarding the linking to the Lumen website. This time the regional court of Munich denied the injunction, on the basis that providing a link to Lumen, where users then had to click another link to find the infringing content, would not constitute an infringing contribution by Google. Thereupon, the Claimant appealed the decision to the Oberlandesgericht München (Higher Regional Court of Munich).
The OLG München ordered an injunction, ruling that the search results that Google indirectly enabled, was an infringement of the Claimant’s right to publicity/personality under Art. 2 Grundgesetz. Consequently, the Respondent had to delete the link to the Lumen website from its search.
The Court held that although the four snippets at issue constituted factual claims and not an opinion, since truth of their content was verifiable which would not be the case with opinion, factual claims are also constitutionally protected under Art. 5 Grundgesetz (the right to freedom of expression).
However, the Court found that the content of the Google search result infringed the company’s publicity/personality rights under Art. 2 Grundgesetz, because the factual claim that the Claimant was being investigated for suspected fraud could harm the Claimant’s public reputation and thereby cause economic damage.
It then said, that Google was a “mittelbarer Störer” (an “indirect disrupter”) because it did not take possible and reasonable steps to prevent the infringement, even though it knew about it. The Higher Regional Court, unlike the lower court, did not consider it relevant that Google did not provide the link directly, but via an explanatory statement and a link to Lumen. It reasoned that Google’s main function is to enable users to find websites and Google continued to provide this function, even after the injunction. The Court found that it was irrelevant whether a user would need one or two clicks to reach the result.
In summary, the Court held that Google still provided the link to the infringing statement, which violated the Claimant’s right to publicity/personaility, and ordered Google to delete the link accordingly.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision contracts expression by extending Google’s liability for infringing content on websites to cases where it does not provide the link directly but through a link to another website.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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