In May 2013, the German Federal Court of Justice stated that Google's predictions within the autocomplete function of its web search engine can violate the right of personality.German Federal Court of Justice, VI ZR 269/12 of 14.5.2013. The German courts derived this right from art. 2(1) in conjunction with art. 1(1) of the Basic Law for the Federal Republic of Germany (German constitution) and it is also applicable in private law (as "another right" in the sense of sec. 823(1) of the German Civil Code. Retrieved 25.2.2016. The right of personality ensures that a person's (or even a company'sGerman Federal Court of Justice, VI ZR 286/93 of 8.2.1994; German Federal Court of Justice, VI ZR 276/99 of 30.5.2000. Retrieved 25.2.2016.) personality (reputation) is respected and can be freely developed.The German Federal Constitutional Court, BvR 536/72 of 5.6.1973. Retrieved 25.2.2016. Only the individual shall, in principle, decide how he/she wants to present himself/herself to third parties and the public.The German Federal Constitutional Court, BvR 536/72 of 5.6.1973. Retrieved 25.2.2016.

Facts of the case Source:German Federal Court of Justice, VI ZR 269/12 of 14.5.2013, [1-3]. Retrieved 25.2.2016.

A stock corporation, which sold food supplements and cosmetics online, and its chairman filed an action for an injunction and financial compensation against Google based on a violation of their right of personality.See on the derivation of the right of personality: Sec 1004(1) (applied analogously), 823(1) of the German Civil Code in conjunction with art. 2(1), 1(1) of the Basic Law for the Federal Republic of Germany (German constitution). Google runs a web search engine under the domain "www.google.de" (among others), which allows Internet users to search for information online and access third party content through a list of search results.

In 2009, Google implemented a so-called "autocomplete" function which shows word combinations as predictions for the search of the user in a new window while typing in a search term into the search mask. These predictions are based on an algorithm which evaluates the number of searches on specific terms of other users. If users typed the full name of the chairman into the search engine in May 2010 the autocomplete function showed the predictions "Betrug" (fraud) or "Scientology". The claimants stated that the chairman would have no connection to Scientology and that he was under no investigation for fraud. Furthermore, they argued that no search result would show a connection between the chairman and fraud or Scientology. Therefore, they saw these predictions as a violation of their right of personality.

The Regional Court Cologne decided in favour of Google and dismissed the case as unfounded.Regional Court Cologne, 28 O 116/11 of 19.10.2011. The Higher Regional Court Cologne uphold this judgement.Higher Regional Court Cologne, 15 U 199/11 of 10.5.2012. Retrieved 25.2.2016. The claimants filed an appeal to the German Federal Court of Justice.

The decision Source:German Federal Court of Justice, VI ZR 269/12 of 14.5.2013, [4-31]. Retrieved 25.2.2016.

The German Federal Court of Justice set aside the judgement of the Higher Regional Court Cologne and referred the case back to this court.See on the referral to a court of lower instance: Sec. 563 of the German Code of Civil Procedure. Retrieved 25.2.2016.

The Federal Court of Justice held that the predictions ("Betrug"/"Scientology") expressed the existence of a factual connection between the chairman and these negatively connoted terms and violated the right of personalitySee on the derivation of the right of personality: Sec 1004(1) (applied analogously), 823(1) of the German Civil Code in conjunction with art. 2(1), 1(1) of the Basic Law for the Federal Republic of Germany (German constitution). Retrieved 25.2.2016. (the Higher Regional Court Cologne had taken a different view previously and had held that the predictions only expressed that other users typed in these word combinations for their search or that the terms could be found in linked third party content) the claimant's right of personality outweighed Google's freedom of expressionArt. 5(1) of the Basic Law for the Federal Republic of Germany (German constitution). Retrieved 25.2.2016. and commercial freedomArt. 2(1) and 14 of the Basic Law for the Federal Republic of Germany (German constitution). Retrieved 25.2.2016. in a trade-off because false expressions do not need to be accepted the violation was directly assignable to Google because they designed the software, exploited the user's behaviour, and suggested the predictions to the users the national implementationSec. 7-10 of the German Telemedia Act. Retrieved 25.2.2016. of the provisions of the Electronic Commerce Directive,Council Directive 2000/19 OJ 2000 L178/1. Retrieved 25.2.2016. which grant intermediaries (access, caching, and host provider) immunity from liability to a certain extent,See sec. 230 of the 1996 Communication Decency Act for the parallel provision in the United States. Retrieved 25.2.2016. were not applicable in this case because the predictions were not third party content that Google only made accessible or presented, but Google's own content the basis for a liability of the search engine provider is not the fact that he developed and used the software because these actions are protected by the provider's commercial freedomArt. 2(1) and 14 of the Basic Law for the Federal Republic of Germany (German constitution). Retrieved 25.2.2016. the liability can only be based on the fact that the provider did not take the necessary precautions to prevent the violation of a right of personality as part of a so-called "Stoererhaftung" (the "Stoererhaftung" (interferer's liability) is a liability of a person (the "Stoerer") who is not a perpetrator or participant himself, but contributed willingly and adequately causally to the infringement of a protected legal interest in any way and requires a breach of a reasonable duty of careGerman Federal Court of Justice, VI ZR 269/12 of 14.5.2013, . Retrieved 25.2.2016.) the search engine provider has, in principle, no obligation to monitor the predictions generated by a software beforehand and is only responsible if he becomes aware of the violation by the predictions if the provider is notified of a violation by the victim he is also required to prevent future violations.German Federal Court of Justice, VI ZR 269/12 of 14.5.2013, [4-31]. Retrieved 25.2.2016. In April 2014, the Higher Regional Court Cologne then decided in favour of the claimants insofar as they objected to the additional term "Scientology" which Google initially refused to remove.Higher Regional Court Cologne, 15 U 199/11 of 8.4.2014. Retrieved 25.2.2016. A financial compensation was not awarded because Google removed the entry later (about one and a half after the objection) and therefore limited the infringement.Higher Regional Court Cologne, 15 U 199/11 of 8.4.2014. Retrieved 25.2.2016. Due to the fact that Google removed the additional term "Betrug" (fraud) immediately after the claimant's first objection, this part of the claim was unfounded.Higher Regional Court Cologne, 15 U 199/11 of 8.4.2014. Retrieved 25.2.2016.

Criticism Some legal scholars argued that the judgement established a reasonable balance between the protection of the right of personality (by Google's obligation to remove and prevent infringing predictions after a notice), Google's interest to still provide the autocomplete function (without the need to monitor all predictions) and the Internet user's interest to make use of the search's improvement.Georgios Gounalakis, "Rechtliche Grenzen der Autocomplete-Funktion von Google" Neue Juristische Wochenschrift Vol. 32 (2013) 2324.

The court's decision that the search engine provider has no obligation to monitor the predictions generated by a software beforehand and is only responsible if he becomes aware of the violation by the predictions corresponds with previous judgementsSee German Federal Court of Justice, VI ZR 144/11 of 27.03.2012 and German Federal Court of Justice, VI ZR 93/10 of 25.10.2011. Retrieved 25.2.2016. of the court on the "Stoererhaftung" (interferer's liability) of a host provider for content that third parties posted on the host provider's website.Higher Regional Court Cologne, 15 U 199/11 of 8.4.2014, ; Thomas Stadler, "Analyse: Das Urteil des BGH zur Autocomplete-Funktion von Google" heise online (2013). Retrieved 25.2.2016. However, due to the fact that these previous judgements discussed the liability for third party content, others stated that the fact that the court's autocomplete judgement is based on Google being an interferer ("Störer") within the "Stoererhaftung" (interferer's liability) – and not a perpetrator – contradicts the court's statement that the predictions have to be seen as Google's own content.Adrian Schneider, "BGH: Die Autocomplete-Entscheidung im Detail" Telemedicus (2013); Niko Härting, "Begründung des Autocomplete-Urteils: Wer soll dies denn noch verstehen?" CR online (2013). Retrieved 25.2.2016.

Moreover, the judgement raises the question which result a trade-off between Google's freedom of expression and commercial freedom and another person's right of personality would have in other scenarios.Thomas Stadler, "Analyse: Das Urteil des BGH zur Autocomplete-Funktion von Google" heise online (2013). Retrieved 25.2.2016. Depending on the specific circumstances, it could be more complicated to assess if a prediction is false or (even) true, but not worthier of protection than the right of personality (e.g. in a case in which an investigation for a crime – like fraud – already started or in which a person is actually the victim of a crime).Thomas Stadler, "Analyse: Das Urteil des BGH zur Autocomplete-Funktion von Google" heise online (2013). Retrieved 25.2.2016.

Another interesting issue is the question to what extent Google is capable of legally evaluating and processing notifications by alleged victims of an infringement.Georgios Gounalakis, "Rechtliche Grenzen der Autocomplete-Funktion von Google" Neue Juristische Wochenschrift Vol. 32 (2013) 2324. The current legal situation could be an incentive for Google to just remove the prediction after a complaint in order to avoid any liability.Georgios Gounalakis, "Rechtliche Grenzen der Autocomplete-Funktion von Google" Neue Juristische Wochenschrift Vol. 32 (2013) 2324.

Background information