On 14 May 2013, the German Federal Court of Justice found the search engine Google guilty on the grounds that the autocomplete function that reflects the search activity of web users can be detrimental to individuals and companies. Indeed, when a user enters a term in the search bar, a series of key words are presented to him in the form of predictions, which can sometimes have negative connotations.
In the case at hand, a German company and its director sued Google, claiming infringement of their personality rights when their names were associated to the terms “fraud” and “scientology”. They thus sought compensation as well as the removal of such predictions.
The Court of Appeal of Cologne did not side with the company and its founder. It considered that the average user understands that predictions are the outcome of Google’s algorithm-based software process.
The German Federal Court of Justice however, took a different stand and considered that there was an infringement of personality rights due to the negative connotation attached to such an association. Based on this, the Court held Google to be liable and requested that the related predictions be removed as they did not bear any relevance to reality.
Google will thus be liable in Germany as soon as infringement is communicated by a plaintiff and no measures are taken by the search engine to prevent such happenings. Thus, the cancelation of Google’s autocomplete function is not required by the Court. There is no obligation to monitor predictions for infringements of personality rights.
The stand of the German Federal Court of Justice requires the search engine to set up a monitoring and evaluation procedure in order to remove all predictions infringing personality rights. One can envision the difficulties that such a task would entail.
A harmonization of European case-law on the autocomplete function will most likely not be achieved (Cass. 1st civ 19 February 2013, TGI Paris 23 October 2013) until a decision of the European Court of Justice.