In its judgment of 23 May 2023 on delisting requests against Google’s internet search service, the Federal Court of Justice ruled that the operator of the search engine is obliged to grant a delisting request if the applicant proves that the information contained in the listed content is obviously incorrect. (BGH, judgement of 23.5.2023, ref.: VI ZR 476/18; BGH press release of 23.5.2023 https://www.bundesgerichtshof.de/SharedDocs/Pressemitteilungen/DE/2023/2023084.html)
I. Background
1. Facts
The judgment is based on a dispute about delisting requests against Google’s internet search service. The plaintiff holds responsible positions or participations in various companies that offer financial services. The plaintiff is his partner and authorised signatory of one of these companies. The plaintiffs are defending themselves against several articles, one of which also contained photos of the plaintiffs, which appeared on the website of a US company and which deal critically with the investment model of some of these companies. According to the company’s own statements, its aim is to “make a lasting contribution to fraud prevention in business and society through active education and transparency”. The business model of the operator of the website was reported critically, among other things with the accusation that she tried to blackmail companies by first publishing negative reports and then offering to delete the reports or prevent the negative reporting in exchange for a so-called protection money. The plaintiffs claim that they were also blackmailed. They demand that the defendant, as the person responsible for the internet search engine “Google”, refrain from displaying the articles mentioned in the search for their names and the names of various companies in the list of results and from displaying the photos of them as thumbnails. For its part, the defendant had stated that it was unable to assess the truth of the claims made in the linked content.
The reasoning for the BGH’s decision is not yet available.
2. Proceedings
Initially, the Cologne Regional Court had dismissed the action (Cologne Regional Court, judgment of 22.11.2017, ref.: 28 O 492/15) and the subsequent appeal was also unsuccessful (Cologne Higher Regional Court, judgment of 8.11.2018, ref.: 15 U 178/17). Subsequently, the BGH had initially suspended the proceedings by order of 27 July 2020 (BGH, order of 27 July 2020, ref.: VI ZR 476/18) and referred two questions on the interpretation of Art. 17(1) GDPR to the ECJ for a preliminary ruling. The ECJ answered these questions in its judgment of 8 December 2022 (ECJ, judgment of 8 December 2022, ref.: C-460/20).
According to the ECJ, the delisting was initially not dependent on the question of the correctness of the listed content having been clarified, at least provisionally, in the context of a legal remedy brought by that person against the content provider. Rather, the search engine operator is obliged to grant a delisting request if the person requesting a delisting submits relevant and sufficient evidence that is capable of supporting his request and proves that the information contained in the listed content is manifestly incorrect or at least a part of this information that is not insignificant for this entire content is manifestly incorrect.
As regards the thumbnails, the applicant submits that account must be taken of the informational value of those photographs, irrespective of the context of their publication on the internet site from which they are taken, but taking into account any textual element directly associated with the display of those photographs in search engines which may provide information on the informational value of those photographs.
II. The decision of the BGH
After the ECJ had answered the questions, the BGH continued the oral proceedings. As a result, the appeal was only partially successful. With regard to the objectionable references to the articles mentioned, the BGH had confirmed the decisions of the lower courts dismissing the action. According to the BGH, one article lacked the necessary reference to the person of the plaintiff. With regard to the other two articles, the plaintiffs allegedly failed to provide the defendant with the necessary proof that the information contained therein was obviously incorrect. With regard to the thumbnails, however, the plaintiffs’ appeal was successful. The BGH obliged the defendant to delist the thumbnails in the form complained of. The display of the plaintiffs’ photos, which were not meaningful in themselves, as thumbnails without any context was not justified.