a) If an interested party the operator of an Internet search engine with search function to enjoin the word supplement supplements personality-infringing items when entering the name of the person concerned to entitlement, liability on the part of the operator's injury reasonably requires testing obligations.
b) The operator is generally responsible only, when it becomes aware of the unlawful violation of the personal rights.
c) Assigns a data subject the operator to an illegal infringement of his personal rights through, the user is obliged, future to prevent such injuries.

BGH VI ZR JUDGMENT 269/12 from 14. More 2013 – Goolge autocomplete

ZPO § 32; EGBGB Art. 40 Abs. 1 Sentence 2; Civil Code § 823 Abs. 1 Ah, § 1004

a) If an interested party the operator of an Internet search engine with search function to enjoin the word supplement supplements personality-infringing items when entering the name of the person concerned to entitlement, liability on the part of the operator's injury reasonably requires testing obligations.
b) The operator is generally responsible only, when it becomes aware of the unlawful violation of the personal rights.
c) Assigns a data subject the operator to an illegal infringement of his personal rights through, the user is obliged, future to prevent such injuries.
BGH, Judgment of 14. More 2013 – VI ZR 269/12 – OLG Cologne
LG Köln
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There VI. Civil Division of the Federal Court dated to the hearing 26. March 2013 by the presiding judge Galke, Judge Wellner, Judge Diederichsen, Pauge the judge and the judge of Pentz
hereby:
On appeal by the plaintiff, the judgment is of 15. Civil Division of the Court of Appeal of Cologne 10. More 2012 repealed.
The thing is for a new hearing and decision, also about the cost of the revision process, referred back to the Appeals court.
By rights
Facts:
The applicant 1, a corporation, the Internet via a “Net-work-Marketing-System” Food supplements and cosmetics markets, and the plaintiff to 2, its founder and CEO, make against the defendant based in the USA, under the Internet address “www.google.de” operates an Internet search engine, Injunctive- and monetary compensation claims. By entering keywords in the search engine users may take the defendant to set access to the Internet from a third party content displayed on hit list. Seit April 2009 the defendant has a “Autocomplete”-Function integrated into their search engine-
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grated, with the help of the internet user while entering his search terms automatically varying the order of the letters entered in a window that opens various search suggestions (“predictions”) are displayed in the form of word combinations. Displayed in the context of this supplement search function searches are determined on the basis of an algorithm, the u.a. includes the number of search queries entered by other groove financial.
The plaintiff to 2 presented in May 2010 tight, that in entering his name mens r.s. in which in the “Autocomplete”-Opening window function as search suggestions, the word combinations “R.S. (fuller Names) Scien-tology” and “R.S. (fuller Names) Cheating” published. Thus, the plaintiff see in their personal rights and business reputation injured. You have u.a. claims, the appellant is not in any way related to Scientology is still accuse him of a fraud or an appropriate investigation has been initiated against him. In no viewfinder result is a connection between the plaintiff and “Scientology” or. “Amounted to” clear.
The plaintiffs initially in an interim decision paths avail-able from 12. More 2010 obtained, by the defendant was prohibited, on the website of their search engine and enter the name of the plaintiff to 2 as a search term in the context of “Autocomplete”-Function, the complementary combination of terms “Scientology” and “Cheating” propose. According to the setting of the decision available to the former administrative contact persons nerin the defendant in Germany on 27. More 2010 no longer appeared the objections Deten supplement suggestions. The defendant has denied a final declaration. In the present proceedings on the plaintiffs claim on the already charged to the interim relief made
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Injunctive relief beyond replacement prejudgment Rechtsverfolgungskos-th and the plaintiff to 2 In addition, the payment of a monetary compensation. The district court dismissed the action. The appeal against that judgment the plaintiff was rejected by the Court of Appeal. With the revision approved by the appellate court, the plaintiffs pursue their claim for relief more.
Reasons:
I.
The Court of Appeal (Published ruling u.a. in IIC-RR 2012, 486 and TO 2012, 987 m. Anm. Seitz) has both the international jurisdiction and the applicability of German law affirms. However, the action is not considered justified, because the automated Suchergänzungsvor proposals in the search engine of the defendants in entering the name of the plaintiff to 2 no separate statement should be attached to content. The displayed search terms supplement “R.S. Scientology” and “R.S. Cheating” contained no (own) Statement of the defendant with the content, dass R, S. Member of Scientology was this sect or at least positively confront or perpetrators or participants in a fraud was. It already encounter doubts, whether the concept of combinations at all or such a connotation. a far out of himself intelligible meaning can be attached. Ultimately, this could, however, be left open, since it lies far to the horizon of experience of users of the search engine of the defendant, to understand the dispute supplementary search terms as expressions, which would thematic links between the entered search term and displayed to the supplementary proposals made by the defendant. A different assessment it follows neither from the arguments put forward by the plaintiffs manipulation-
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lationsversuchen even from press coverage of similar operations pending the results of submitted by the plaintiffs to file traffic survey. One reason for the relief sought by plaintiffs obtaining a de-moskopischen expert opinion did not exist, because the members of the Senate to the discerning target group addressed, namely the unbiased and circumspect recipient of the disputed supplement Searches, included. From the perspective of such a recipient, the average display let Ergänzungssuchbe handles only the search engine's own testimony of the defendant entneh measures, that other previous user had typed the selected combinations of terms for searching or that the supplement could locate keywords in each linked third-party content as such. This statement was true and therefore to accept the applicants'.
II.
The appellate judgment does not hold a legal audit review was.
1. The appeals court, however, has considered the application admissible rightly.
a) Applicable, the appeal court has international jurisdiction of the German courts in the application of § 32 ZPO affirmative. Although it is sufficient for the Court's statement of reasons for the Senate recognized the international jurisdiction of the German courts in the context of § 32 Not ZPO, that the plaintiff has the center of his interests at country; is required rather, that the impugned as infringing
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Exhibit content objectively a clear reference to the domestic in the sense, that a collision of conflicting interests – Interest of the applicant in respect of his right to privacy on the one hand, Interest of the defendant in the design of his website the other hand, – according to the circumstances of the case, especially because of the content of the specific mes-sage, actually occurred or may occur in domestic (vgl. Senatsurtei-le from 29. March 2011 – VI ZR 111/10, NJW 2011, 2059 and from 2. March 2010 – VI ZR 23/09, BGHZ 184, 313). These conditions are met in the event of a dispute in accordance with the findings of the court below, as an acknowledgment of the contested search and additional information domestically is much closer than would be the case because of the mere accessibility of message would occur and the alleged interference by the plaintiffs of their right to privacy by taking note of the results and additional information in domestic. In addition, the jurisdiction rule applied in accordance with § 39 Code of Civil Procedure also based on appearance (vgl. BGH, Judgment of 13. July 1987 – II ZR 280/86, BGHZ 101, 296, 301).
b) The Court of Appeal has – the alternative use of the disputed terms supplement comprehensive – Injunctive relief intended for sufficiently considered within the meaning of § 253 Abs. 2 No.. 2 ZPO. The revision takes as her low back and also encountered no concerns.
2. The merits of the action, however, can – contrary to the opinion of the court – not be denied because of previous findings.
a) The Court of Appeal has no error of law German law been applied. By type. 40 Abs. 1 Sentence 1 BGB subject to claims of adverse-
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laubter action principle, the law of the State, in which the subject has acted replacement. The injured party may, however, on the type. 40 Abs. 1 Sentence 2 and 3 Call BGB at first instance by the end of the early first date or the end of the written preliminary, that is applied the law of the state instead of this right, in which the success has occurred. Of this possibility, the plaintiffs have availed in case of dispute. Of the type. 40 Abs. 1 Sentence 2 Draft Law of effect is relevant in German-land. Here the respect of the applicant is resident in Germany to 2 or. the applicant to 1 or interfered with headquarters in Germany. risk (vgl. Senatsur part of 8. More 2012 – VI ZR 217/08, VersR 2012, 994 Rn. 31 – also for the non-applicability of the Rome II Regulation (Rn. 22) and § 3 TMG as factual and legal restriction prohibiting (Rn. 30)).
b) The appellate court an injunction the plaintiff in accordance with § § 823 Abs. 1, 1004 BGB i.V.m. Articles. 1, 2 Denied GG against the defendant as the operator of the internet search engine erred.
aa) Contrary to the opinion of the court include the search word completion suggestions “Scientology” and “Cheating” Prior to entering the- and last name of the applicant to 2 in the internet search engine the defendant's impairment of personal rights of the applicants, because they posses an insulting statement content.
(1) Of the term “Scientology” in conjunction with the name of a real existing person-ner expressed meaning can be – as has already drawn the Court of Appeal considered – sufficiently specify then, that between this sect, to the transport, not least by a previous media coverage concrete ideas exist-ing, and the person mentioned by name is a connection. This
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Compound suitable, a meaningful notion of itself manufactured vorzurufen.
(2) The Court of Appeal can not be accepted, if it wants to handle the loading of fraud deny a substantive validity on the grounds, that this term a wide, Bedeutungsspekt nonspecific serum was connected. Relevant for the interpretation of an utterance, the determination of its objective sense, from the perspective of an unbiased and Verstaen-employed audience (vgl. BVerfGE 93, 266, 295). While it may be true, that of an average Internet users under “Cheating” not the realization of a legally precise specific offense must be understood. However connects the average reader with the use of this term at least a morally reprehensible advantages over another and thus gives it a sufficiently concrete information content (vgl. Constitutional Court, NJW 2012, 1643 Rn. 42).
(3) The Court of Appeal has the supplementary search suggestions displayed by the search engine of the defendant merely removed the statement, that other previous users have entered for the selected combinations of terms re-cherche or that can complement the search terms to locate in ver-third linkten content (vgl. also Härting K & R 2012, 633; Heckmann AnwZert ITR 18/2012 Anm. 1; Brosch AnwZert ITR 20/2012 Anm. 2; a.A. Weltig MMR 2011 No.. 12 V f; Seitz TO 2012, 994, 995 f.; s. also Meyer K & R 2013, 221, 225 f. also further references to the case law of foreign courts te). Which can not join the Senate.
The means of the search engine according to the defendant for information-dominant Internet users expects from him after entering the search term display handle additional search suggestions quite a substantive
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Respect to the related search of him, keeps him anyway possible. From the “Ocean Data” the Internet users are seeking not presented by the search engine of the defendant any x-complementary search suggestions, the only chance “Results” provide. The search engine is, to be as attractive as possible for Internet users – and thus to offer the commercial customer of the defendant the widest possible audience – applied to the content further, explanatory supplementary search suggestions. The algorithm-driven search program refers the queries already submitted and presented to Internet users as a supplement suggestions that word combinations, which were inputted to the question most frequently keyword. This takes place in the – confirmed in practice often – Expectation, that are already related to the search word combinations – the more often the more – the currently seeking Internet users can be helpful, because he-gänzend displayed for the word word combinations reflect thematic links. This expectation has not considered the Court of Appeal in determining the salary of the statement-displayed by the search engine of the defendant supplementary search suggestions. It leads in case of dispute to, that at the input of Prior- Full name of the applicant to 2 “automatically” displayed supplement search suggestions “r. s. scientology” and “r. s. was” the statement is found to, between the plaintiff to 2 and – negative connotations – Terms “Scientology” and / or “Cheating” there is a factual context.
bb) This restriction of the personal rights of the plaintiff, the defendant also directly attributable to. She has analyzed the user behavior with the created by their computer program and submit the proposals to the users of the search engine. The links are one of the terms from the search engine of the defendant and not from
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Produced the third. They will keep bereitge-by the defendant in the network for retrieval and therefore obtained directly from their.
c) However, it does not follow, that the defendant is liable for any personality lichkeitsrechtsbeeinträchtigung by search suggestions.
aa) Although the defendant has not been in accordance with § 10 Telemedia Act (future: TMG) freed from responsibility for the content of their site operated by.
The Court of Appeal, the defendant applicable as service providers (§ 2 Sentence 1 No.. 1 TMG) qualified, holds own information available for use and therefore in accordance with § 7 Abs. 1 TMG under the general law – therefore, also under § § 823 Abs. 1, 1004 BGB – responsible (vgl. Senatsur part of 23. June 2009 – VI ZR 196/08, BGHZ 181, 328 Rn. 13 f. s. also Heckmann, aaO; a.A. Brosch, aaO). The plaintiff, the defendant does not take account of the passage, Caching or storage of external informa-tion, but because of its own information to complete, specifically because of the search word completion suggestions displayed as results of their Autocomplete utility of the users of its Internet search engine. It is therefore a search engine offered by the defendant “own” Content and not making available and / or presentation of foreign content, for the service provider in accordance with § § 8 to 10 TMG is only limited re-sponsible.
bb) But it requires due to the nature of the privacy of a framework law as a balancing of the conflicting constitutionally-protected interests, in the particular circumstances of the individual case and the relevant fundamental rights and guarantees of the European Convention on Human Rights to consider conducting interpretation (vgl. It-
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natsurteile from 9. December 2003 – VI ZR 373/02, VersR 2004, 522, 523; from 11. March 2008 – VI ZR 189/06, VersR 2008, 695 Rn. 13 and – VI ZR 7/07, VersR 2008, 793 Rn. 12; from 3. February 2009 – VI ZR 36/07, VersR 2009, 555 Rn. 17; from 22. September 2009 – VI ZR 19/08, VersR 2009, 1545 Rn. 16; from 20. April 2010 – VI ZR 245/08, NJW 2010, 2728 Rn. 12; BVerfGE 114, 339, 348 mwN; 120, 180, 200 f.; Constitutional Court, NJW 2009, 3357 Rn. 17; AfP 2009, 480 Rn. 61). The interference with the right to privacy is only unlawful, when the interest of the data outweighs the legitimate interests of the other side (vgl. Senate judgments 21. June 2005 – VI ZR 122/04, VersR 2005, 1403, 1404; from 17. November 2009 – VI ZR 226/08, VersR 2010, 220 Rn. 20 ff. mwN; from 15. December 2009 – VI ZR 227/08, BGHZ 183, 353 Rn. 11 – Onlinearchiv I; from 9. February 2010 – VI ZR 243/08, VersR 2010, 673 Rn. 14 – Online Archive II and the 20. April 2010 – VI ZR 245/08, aaO).
cc) After that are the interest of the plaintiff in the protection of their personal rights on the one hand and the under Arts. 2, 5 Abs. 1 and 14 GG-protected interests of the defendant to freedom- and economic freedom on the other hand weigh. It should be, that the defendant's search function operates while in their own commercial interest in the manner described, to bind users because of the effectiveness of the search itself. But attracting the users turn it to advantage a particular hand based search for data and information. Also, the appellants not against it, means that the search engine personal data, as the applicant's name to 2 and its relation to the applicant to 1, can be found. On the plaintiff side is crucial for the assessment, that the linked concepts have an untrue statement content, because the plaintiff to 2 – which after the presentation of the plaintiff's legal revision to go – can not be brought in connection with a fraud or Scientology is-or is even close to listening. Untrue statements of facts must
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will not be tolerated (vgl. Senate judgments 8. More 2012 – VI ZR 217/08, VersR 2012, 994 Rn. 37; from 30. October 2012 – VI ZR 4/12, VersR 2013, 63, Rn. 12, further references; Constitutional Court, AfP 2009, 480 Rn. 62 mwN; NJW 2012, 1500 Rn. 39).
d) Is therefore of the above principles can be assumed, that the disputed search word completion suggestions violate the personal rights of the plaintiff, can not be denied from the outset as a liability of the defendant Störerin.
aa) As interference in the sense of § 1004 BGB – regardless, if he is at fault – everyone to see, has caused the fault or whose behavior can be a risk of damage. With a disability are more people involved, it is irrelevant for the question, whether injunctive relief is given, principle, not on the nature and extent of the participation or to the interest of each party to the achievement of the disturbance at. In general, irrelevant, if it were otherwise deemed by the type of involvement as perpetrators or accessories (vgl. Senate, Judgments 3. February 1976 – VI ZR 23/72, NJW 1976, 799, 800; from 27. More 1986 – VI ZR 169/85, VersR 1986, 1075, 1076; from 9. December 2003 – VI ZR 373/02, VersR 2004, 522, 524). As (With-)Each interferer may also be liable, who participated in any way willfully and adequately causally involved in bringing about the unlawful interference, unless the claim in Ge had made the legal way to prevent this action. The negatorischen injunctive relief shall not preclude, to claim that the detainees lack the knowledge of the existence of facts constituting the illegality and the circumstances giving rise. Similarly, the fault is not required (vgl. Senate judgments 30. June 2009 – VI ZR 210/08, VersR 2009, 1417 Rn. 13, from 9. December 2003 – VI ZR 373/02, aaO mwN; BGH, Judgment
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from 17. December 2010 – The ZR 44/10, NJW 2011, 753 Rn. 9 ff.; Diederichsen, FS Müller, 2009 S. 507, 523).
bb) This does not, however,, therefore, that the defendant is liable without restriction and regardless of reasonableness criteria. Because of the particular circumstances of the dispute, the focus of Vorwerf-ability lies in a failure to.
(1) The development and use of the search suggestions elaboration-border software is the defendant not to blame; Here it is, rather, an under Arts. 2, 14 GG protected economic activity. The search engines offer the defendant also aims not at the outset to a violation of law by a declaration addressed to a specific person untrue statement of fact. Only by the addition of kicking a certain groove zerverhaltens may arise defamatory term connections. The TAE activity of the defendant, on the other hand, not only purely technical, auto-matic and passive nature (otherwise be the case: Google France/Louis Vuitton EuGH, Judgment of 23. March 2010 – C-236/08 bis C-238/08, NJW 2010, 2029 Rn. 114 and BGH, Judgment of 29. April 2010 – I ZR 69/08, BGHZ 185, 291 Rn. 39 – Thumbnails – each privilege to host the type. 14 Abs. 1 Directive 2000/31/EC). It is not exclusively limited to the provision of information for access by third parties. The defendant processed rather the query data of users in a separate program, is the loading handle connections. For their offer in the form of own searches, the defendant is basically due to the development of responsible attributable to their. The defendant therefore can basically accused only are the, to have made no adequate provision, to prevent, that generated by the software searches violate the rights of third parties.
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(2) Breaches, a wrongful omission as (With-) Have cause, is to avoid too extensive liability as a falling-judgmental observation required. The responsibility of the send-omission is limited by the criteria of feasibility and reasonableness of the success-prevention.
Here, the possibility of removing an impairment may result from, that the person controls the source of the interference or influence someone can, is the end of the deterioration in the position (Erman/Ebbing, BGB, 13. Ed, § 1004 Rn. 120). If this is the case,, the person concerned may be an incumbent duty of supervision of importance to the reasonableness of the removal of the interference (vgl. BGH, Decision of 19. December 1960 – GSZ 1/60, BGHZ 34, 99, 108 f.).
Assumption of a liability of the operator of a search engine with the corresponding auxiliary function is therefore as with the liability of a host providers because of the spread of a statement contained in a blog of a third party (vgl. this judgment of the Senate 25. October 2011 – VI ZR 93/10, BGHZ 191, 219) a violation of auditing duties. Their existence as their scope depends in each case after a consideration of all affected interests and relevant legal assessments. Over-stressed in view of requirements may, that it is a lawful participation in the course of trade, are not provided. According to the developed fault rerhaftung principles it is essential to, whether and to what extent the claim is unreasonable in the circumstances arrested after an exam (vgl. BGH, Judgments 12. July 2007 – I ZR 18/04, BGHZ 173, 188 Rn. 38; from 10. October 1996 – I ZR 129/94, NJW 1997, 2180, 2181 f. = WRP 1997, 325 – Architectural Competition; Judgment of 17. More 2001 – I ZR 251/99, BGHZ 148, 13, 17 f. – ambiente.de; Judgment of 11. March 2004 – I ZR 304/01,
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BGHZ 158, 236, 251 – Internet Auction I, from 17. December 2010 – The ZR 44/10, NJW 2011, 753 Rn. 9 ff., further references).
The operator of a search engine is then in principle not obliged, To check the generated by a software search and additional information generated rell advance for possible breaches. This would be the operation of a search engine with a quick research of the user making the search nenden-completion function if not impossible, nevertheless unreasonably difficult. Although a corresponding preventive filter function can be used for specific areas, such as child pornography, be necessary and feasible, However, they can not all conceivable cases a personality lichkeitsrechtsverletzung prevent. Therefore, the operator of an Internet search engine shall generally only require a statutory audit, when it becomes aware of the infringement. Assigns a data subject the operator of an Internet search engine to an unlawful breach of his per-sönlichkeitsrechts out, is the search engine operator shall, future to prevent such injuries (vgl. Division's decision of 27. March 2012 – VI ZR 144/11, VersR 2012, 992 Rn. 19).
3. The Court of Appeals – logical from his point of view – a legal assessment of surface from the point of injury to examination obliga-tions as little as made from the point of – to be granted only in en-tions limits (vgl. Division's decision of 20. March 2012 – VI ZR 123/11, VersR 2012, 630 Rn. 15 mwN) – Right to cash compensation and
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the right to substitute pretrial legal fees. This will have to catch it.
Galke Wellner Diederichsen
Pauge von Pentz
Lower courts:
LG Köln, Decision of 19.10.2011 – 28 The 116/11 –
OLG Cologne, Decision of 10.05.2012 – 15 You 199/11 –

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