German court orders Google to stop linking to Lumen Database

As readers with an interest in online enforcement issues will know, the Lumen database (formerly Chilling Effects) “collects and analyzes legal complaints and requests for removal of online materials, helping Internet users to know their rights and understand the law. These data enable us to study the prevalence of legal threats and let Internet users see the source of content removals.”

Such requests may relate to a variety of claims, including IP-related ones. From Katfriend Mirko Brüß (Waldorf Frommer Rechtsanwälte) comes the news that a German court has issued an injunction against Google, preventing it from linking to Lumen in the context of a claim for defamation.

Here’s what Mirko writes: 

“The Higher Regional Court of Munich (Oberlandesgericht München) has issued an injunction against Google (case no. 18 W 826/17) that provides some insight into an interesting problem that has bothered copyright owners and victims of online defamation alike. Upon receiving a takedown notice or a court order, Google routinely deletes infringing websites from its search results.

However, Google will simultaneously forward the notice to Lumen (formerly Chilling Effects), and also provide a link to Lumen’s website (www.lumendatabase.org/), where the full notice, including the hyperlink to the infringing website can (still) be found, thus – according to some – perpetuating the infringement.

The question presented to the Munich Court was whether Google is legally obliged to refrain from linking to Lumen and can be forced to do so. It appears that this has not been yet decided by a court, at least for the territory of Germany. In short, the court’s anwer to this question was: yes.

The claimant in this case is a German company. When entering the combination of the company‘s name and the words ‘suspected fraud’ (original: ‘Betrugsverdacht’) in a Google search, the results would show four snippets containing the company’s name and the words ‘suspected fraud, public prosecutor is investigating’ as news headlines. However, the company was not being investigated for fraud (§ 263 StGB - German criminal code), but for investment fraud (§ 264a StGB). While both crimes are fraud-related, the legal requirements for investment fraud are very different from regular fraud. In particular, in case of investment fraud, no deception needs to have taken place (yet) and no damage needs to have occurred.

The Oberlandesgericht München

Thus, the statement that the company was being investigated because of fraud was false. Under German law, making such a false claim about a company could infringe the company‘s right of publicity. This led to a first court case between the parties, in which Google was ordered by the regional court of Munich (case no. 25 O 3214/17) to stop showing the website(s) with the infringing text in its search results.

Upon being served the first injunction, Google removed the websites from its search results and instead showed an explanation that one search result had been removed and provided a hyperlink to the website lumendatabase.org. The explanation read (in German):

“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”

Clicking the link included in this text would redirect users to a page on Lumen where the ‘deleted’ link to the infringing (false) statement was available.

The claimant thought that by doing so, Google continued to provide access to the infringing website and thus brought another court action, this time seeking an order against Google regarding linking to the Lumen website where the ‘infringing’ links were stored as part of Google’s transparency actions. This claim was dismissed by the court of first instance, the Regional Court of Munich (case no. 25 O 5616/17). While the same court had previously found that Google’s search results were infringing, the court now denied an infringing contribution by Google, because Google did not link to a website that contained the infringing statement, but did merely link to Lumen, where users had to click another link to be forwarded to the infringing content.

This judgment was appealed by the claimant, and the second instance reversed the regional court’s decision, granting the claim against Google.

Kat with Link

While one could have expected the judgment to touch upon the recent GS Media [Katposts here] and Filmspeler [Katposts here] decisions of the Court of Justice of the European Union, it does not do so. This would have been very interesting, because after GS Media, ‘commercial’ linking to infringing content is subject to a presumption of knowledge by the link provider which, if not rebutted, may lead to a finding of liability.

But in the case at hand, the Higher Regional Court found that Google’s main function that needs to be considered here is not the provision of a (direct) hyperlink to the infringing statement, but rather the provision of a search function that enables users to find the (otherwise hard to find) website. By presenting its users an explanation about the deleted search result, combined with a hyperlink to the Lumen website where the deleted search result could be clicked, Google (still) enabled users to find and read the infringing statements, even after being ordered by a court to discontinue doing so. The court found that it made no difference whether one or two clicks are needed to get to the result.

Here, the claimant had also asked Google to delete the hyperlink to the Lumen website before going to court the second time. In response, Google refused to delete the link, stating that transparency for the users had the highest priority.

Under such conditions, the court’s reasoning is convincing. Google’s practice to delete infringing search results, only to make them available elsewhere - via a copy of the takedown request that is then linked to in search results - does not make any sense and appears to be in defiance of a claimant/victim’s rights. If Google feels the need to make every notice available for reasons of transparency, it should do so by presenting a copy of the notice that only contains hyperlinks that are redacted in such a way that they cannot be used to access the infringing content. For the purpose of possible litigation (that might arise from counter-claims or the like), Google could keep an un-edited copy of the original notice that is not made available to the public.

Since the claim was brought in preliminary proceedings, Google cannot appeal the Higher Regional Court’s decision. It may only ask the claimant to enter main proceedings, which would then begin (again) at the Regional Court’s level.”