Content Moderation, Digital Rights
Scarborough v. Frederick County School Board
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The German Higher Regional Court Karlsruhe held that Google was not obliged to remove search results linking to online articles in which individuals were named and described as racist and Islamophobic. After two articles were published on an online media platform, the individuals requested that Google remove those articles from search results of their names. Google de-indexed the results but the articles were then moved to a different URL and the individuals requested that Google block all results from the online platform – which Google refused. The Heidelberg Regional Court partially granted injunctive relief, ordering Google to remove one of the articles on the grounds that it violated personal rights, but refused the request for the full blocking of search results. The Karlsruhe Higher Regional Court dismissed the appeal in its entirety, finding that there had been no violation of the individuals’ personal rights and no defamation, and that the right to freedom of expression outweighed the personal rights of the individuals. The Court stated that an absolute ban on links to the articles – as sought by the individuals – would have been an unjustifiable limitation of the right to freedom of expression.
In 2012, two German individuals who were active in the right-conservative political circles in Germany were named in two articles in German on a politically left-wing internet platform within the global media portal “Indymedia.org”. The articles mentioned the claimants by name and provided personal details, such as their place of residence and employment. In the articles, the individuals were described as “(avowed) racists” (bekennende/r Rassist/in) and “avowed Islam-haters” (bekennende Islamhasserin). The media portal did not name the author of the articles. The server of the portal is located in Brazil.
The individuals argued that they are conservative Germans who have publicly demonstrated against Islamist violence against Christians and members of other minorities in many countries. They believed that because of their Christian-conservative attitude and criticism of Islamist violence, they were criticized by the left-wing media portal without any factual basis, were linked with the racist ideology of National Socialism and were insulted in the worst possible way. They argued that their general right of personality has been violated by the articles, and because of the anonymity of the publication and the operation of the media portal without an imprint from a server in Brazil, they did not believe direct action against the publication of the articles to be possible.
The individuals brought an action before the Regional Court Heidelberg against Google, as the articles were listed in Google’s search results when their names were entered into the Google search. They submitted that Google, as the operator of the most influential search engine, had the ability to destroy them socially and, above all, professionally by displaying the articles as a first search result as the articles named their workplace and demanded action by the employing institution. The individuals stated that the relevant search results threatened them with the loss of their jobs, that they had already lost their jobs, or that they could no longer find work, and argued that Google was responsible for content that violates personal rights if it continued to link to this content. The individuals sought an order that Google no longer link to any domain of the media portal or displays search results, which refer to the portal, and claimed financial compensation for the damage incurred. Initially the individuals had required Google to no longer display specifically designated links as search results leading to the objected articles. Google complied with this inquiry. However, the articles were moved to another page of the media portal and therefore were again findable under Google’s search engine. The individuals then required that Google, regardless of the search query, display no search results referring to the main domain of the media portal Indymedia. Google refused to do so.
Google argued that the individuals belong to the political milieu of “Islamophobia relevant for the protection of the Constitution”. This type of Islamophobia could be regarded as a form of racism. Google maintained that the critical articles in the media portal were permissible as expressions of opinion and were underlaid by factual circumstances. In addition, Google raised procedural objections and submitted that a general prohibition of linking to a website was without legal justification.
On December 9, 2014, the Heidelberg Regional Court (Landgericht Heidelberg) granted the individuals’ action partially. The Court ordered Google to no longer display a link to the article on one of the individuals, as the article described the claimant as a “avowed racist” and “avowed Islam hater”, which impaired her social consideration (sozialer Geltungsanspruch) and violated her personal rights. For the article on the second individual, the Court found that he could not claim any injunctive relief, because the statements were underlaid by true factual assertions and related to the political life of the individual – which was covered by the right to freedom of expression and freedom of press. The Court held that the individuals were not entitled to a general ban on displaying and linking any search results of the media portal Indymedia without identifying specific acts of infringement, because it was not necessary for the protection of personality, and unnecessarily and inadmissibly restricts the freedom of expression and freedom of press.
Both parties appealed to the Karlsruhe Higher Regional Court (Oberlandesgericht Karlsruhe).
The 6th Civil Senate of the Karlsruhe Higher Regional Court delivered its unanimous decision on December 14, 2016. The central issue for the Court’s determination was whether an unlawful violation of the individuals’ personal rights had occurred which entitled them to injunctive relief of the removal of the links in Google’s search results under sections 823 (1) and 1004 Civil Code (Bürgerliches Gesetzbuch, BGB).
The Court began with an assessment of the statements in the first article, and determined the content of the statements, using the “understanding of a reasonable average recipient” and taking the concrete context into account [para. 73]. For the statements “avowed racist” and “avowed Islam-hater”, the Court stated that the term “racist” was not used in its proper sense, referring to racial-ethnic discrimination on the basis of skin color or origin, but rather describing a behavior hostile towards Islam and Muslims. According to the Court, this expansion of the term “racist” to an attitude that deliberately and offensively discriminates on the basis of religion corresponds to its actual use in today’s political discourse. In view of Islamophobic statements by the first individual, the article called her a “racist”. The Court interpreted the statement “avowed” racist as not implying an actual personal avowal, but as referring to any public demeanor warranting a qualification as a “racist”. The Court then examined whether the statements were a statement of facts or value judgment (Werturteil). It stated that “[f]actual statements are characterized by the objective relationship between the statement and reality. In contrast, value judgments and expressions of opinion are characterized by the subjective relationship of the person making the statement to the content of his statement” [para. 75]. If a statement mixes facts and opinions and in particular, if a separation of the evaluative and the factual content would nullify or distort the meaning of the statement, the Court noted that it is protected as an opinion under the right to freedom of expression under Art. 5 (1) German Basic Law (Grundgesetz, GG). For the statements “avowed racist” and “avowed Islam hater”, the Court concluded that these were predominantly value judgments, because these were essentially evaluations of behavior, but at the same time based on factual assertions. Therefore, the statements were protected under the right to freedom of expression.
The Court found that the statements in the article were only unlawful if the personal right of the individual outweighed the conflicting interests of the other party protected by basic rights. In the process of balancing, the “special circumstances of the individual case and the affected basic rights and guarantees of the European Convention on Human Rights (ECHR) had to be taken into account as a guideline for interpretation” [para. 78]. In the present case, the individual’s interest in the protection of her social reputation and her (professional) honor guaranteed by Art. 1 (1) and Art. 2 (1) GG and Art. 8 (1) of the ECHR had to be weighed against the freedom of communication and freedom of expression enshrined in Art. 5 (1) GG and Art. 10 of the ECHR. In this context, the Court recognized that “in the political battle of opinions […] even strident, pointed evaluations could be permissible” [para. 78]. The Court held that the article was based on several factual assertions, such as that the individual was active in various right-wing populist groups, had appeared on behalf of a right-wing minor party or had published an article in which she professed to be hostile to Islam. Since the Court had to assume that these facts were true on the basis of the evidence given in the first instance court and criticism may be expressed sharply, pejoratively and with exaggeration in political debate, it found that the individual’s interest in not having her reputation impaired, takes second place to the interest of the publisher in the right to freedom of expression.
The Court then assessed whether the statements in the article constituted an impermissible defamation (Schmähkritik). It defined that defamation as “characterized by the fact that the focus is no longer on the issue at hand, but on defaming the person. The essential characteristic of defamation is a personal slight that completely overshadows the factual issue” [para. 84]. The Court found the article was clearly not defamatory, because the article substantiated the designation of the claimant as an “avowed racist” and “Islam-hater”. The naming of the individual’s workplace in the article was also not designed to stigmatize and socially exclude her, but was based on a concrete factual concern of the article’s author to show the incompatibility of her Islamophobic attitude with her professional field of activity that was of interest to the public.
Accordingly, the Court concluded that no unlawful violation of the right of personality had occurred and did not grant the injunctive relief of the removal of the link in Google’s search results referring to the article.
In respect of the second individual, the article had stated that he is a “racist”. Applying essentially the same reasoning as it had for the first individual, the Court found that the assertions in the article were also actual facts. The naming of the individual’s exact place of residence in the article did concern the Court that attacks on him were possible, but given the individual’s relocation this was no longer relevant. Accordingly, it agreed with the court of first instance that the statements did not constitute an unlawful violation of personal rights and were covered by the right to freedom of expression.
The Court added that the individuals would not have been able to claim the removal of any links from Indymedia – even if an unlawful violation of personal rights had occurred. It noted that this applies even if, as in the present case, after a specific link has been blocked by Google’s search engine the blocked content has been displayed on another website of this domain and has therefore been made accessible again by Google’s search engine via a different link. Like the court of first instance, the Court reasoned that “[a] general ban on displaying and linking without identifying specific acts of infringement is not necessary to protect the claimants’ personality and would […] unnecessarily and thus impermissibly restrict the freedom of expression […]. Furthermore, such a restriction would interfere to a considerable extent with the constitutionally protected freedom of opinion of others who express their views on the media portal [Indymedia]” [para. 105]. A ban on displaying and linking was only possible to the extent that the individuals’ personal rights have been infringed.
Furthermore, the Court confirmed that Google was not liable as an indirect interferer (mittelbarer Störer). An “indirect interferer” is an actor that, without being a direct interferer, contributes in some way, intentionally and causally, to the infringement of a legal right. Liability as an indirect interferer requires the violation of obligations of conduct or monitoring, whose scope is determined by whether and to what extent the interferer can reasonably be expected to prevent the violation under the circumstances of the individual case. In the case of Google, the Court stated that “[b]y providing Internet search results, the defendant operates a business model that is approved by the legal system and socially desirable, and as such does not create a particular risk of infringements of personal rights. Therefore, no control measures may be imposed on it that would jeopardize its business model economically or make its activities disproportionately difficult. The imposition of a general monitoring or investigation obligation without any reason is therefore out of the question in the present case. The defendant’s duty to check the provision of access to the incriminated articles can therefore only arise after it has been specifically notified about an infringement by the claimants” [para. 124]. As a search engine operator, Google is not obligated to monitor articles posted by third parties and to check them for possible violations of personal rights. Since the individuals requested a “full blocking” of the Indymedia domains after the offending articles had “moved” to new URLs, and had not specifically requested Google to delete the (new) specific internet links, Google had not violated its obligations as a search engine operator. On the contrary, Google had fulfilled its obligations by blocking the specific link to the article as a search result in each case after the individuals had informed Google about the article.
Accordingly, the Higher Regional Court Karlsruhe dismissed the individuals’ appeals in their entirety. The Court did not admit appeal (Revision) against its decision.
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