Over the course of the month of May, the German Federal Supreme
Court rendered two important decisions in the area of internet law,
shedding some light on issues that had remained unclear and widely
discussed for some time. The first decision sets boundaries to the
practical assistance performed by the search engine Google in
making suggestions to complete the entered search term. The second
decision gives a first indication on the admissibility of framing
in the opinion of the German Federal Supreme Court, while the
ultimate interpretation of the law is left to the Court of Justice
of the European Union.
German Federal Supreme Court Provides Opportunity to Stop
Defamation via Google Auto-Complete Function
On May 14, 2013, the German Federal Supreme Court
(Bundesgerichtshof, hereinafter referred to as
"BGH") rendered a decision on the question of
Google's liability for defamatory text suggestions made by the
so-called auto-complete function (docket no. VI ZR 269/12). The
Court held search engines liable for defamatory content as soon as
the search engines get notice of such defamatory content. This
should enable private persons and companies to request deletion of
such auto-complete content by way of a notice and take down
procedure.
Facts and Procedural History. The plaintiffs, a
German company for nutrition and cosmetics and its founder and
managing director, sued Google Inc. for infringement of personality
rights in Germany. The founder realized in 2010 that a search of
his full name on www.google.de was auto-completed by Google with
the suggested text "Scientology" and
"fraud."
The plaintiffs requested Google to cease and desist from providing
such suggestions to the name search of the plaintiff. The
plaintiffs argued infringement of personality rights, stressing
that there is no connection between the plaintiffs and Scientology
and that there is no reason to link the plaintiffs to any
fraudulent behavior. Besides, none of the search results contained
a link between the plaintiff and Scientology or fraud. Google
denied such claims.
The plaintiffs lost in first and second instance. The BGH,
however, vacated the decision of the Appeal Court and ordered the
Appeal Court to reconsider the matter with the following legal
principles in mind:
- A search engine may use the auto-complete software without being obliged to check every suggested text option in advance;
- Once the search engine operator gets notice of suggested text options that infringe personality rights, the operator has to take all necessary and reasonable measures to stop such infringement.
Decision of the Federal Court of Justice. The
BGH held that cease and desist claims of the plaintiffs against
Google for infringement of their personality rights cannot be
denied. The suggested text options "Scientology" and
"fraud" are named in connection with the name of the
plaintiffs and affect their personality rights. This is considered
as an infringement of the personality rights if these options are
not true and therefore constitute an unjustified act against
fundamental rights of the plaintiffs.
The BGH also attributes the suggested text options to Google
because Google creates these suggestions via software that is based
on an algorithm taking into account the pattern of use. Therefore,
the BGH imposes reasonable auditing duties on search engines with
regard to possible infringements as a result of the auto-complete
function.
This does not mean that the BGH considers Google liable for every
suggested text option made by the auto-complete function. According
to the BGH, it is not reasonable for search engines to legally
assess every option in advance. However, once the search engine
gets notice of suggested text options infringing the personality
rights of a user, it has the duty to prevent such infringement in
the future.
Summary and Prospect. The BGH thus applied the
liability standards established in their former
"eBay-internet-auction I and II" decisions on search
engines. This means that search engines should be liable for named
infringements of personal rights once they get notice of such
infringement if they do not prevent further infringements. This
decision should enable companies and private persons to prevent
defamatory contents in auto-complete text in the future by way of a
notice and take down procedure against the search engine
operator.
Framing of Video Content—Unauthorized Communication
to the Public?
Now it is the turn of the Court of Justice of the European
Union
With its May 16, 2013 decision (docket no. I ZR 46/12), the
Federal Court of Justice (Bundesgerichtshof) in Karlsruhe
referred a question regarding the legitimacy of framing video
content to the Court of Justice of the European Union
("CJEU") in Luxembourg and asked for a preliminary
ruling.
In general, "framing" is defined as the juxtaposition of
two separate web pages within the same web page that break the
screen into multiple non-overlapping windows. In the case at hand,
YouTube's option to embed video clips on other web sites is the
focus of the controversy.
Facts and Procedural History. The plaintiff,
BestWater International, a company based in Brandenburg, Germany
that produces and sells filtration and purification systems for
drinking water, had created a short promotional video about water
contamination. This video was anonymously uploaded on YouTube
without the plaintiff`s permission. Thereafter, a competitor of the
plaintiff embedded the video on its web site in order to advertise
its own water filtration system. As a consequence, in the summer
2010, visitors to the competitor's web sites were able to
retrieve the plaintiff's video from the competitor's web
site. Consumers could follow a link to the video in question, which
was then played via the YouTube server while remaining embedded in
the competitor's web site in the course of the so-called
framing.
In the court proceedings, the plaintiff took the position that the
defendant made its video—a copyrightable work—publicly
accessible in the sense of Article 19a of the German Copyright Act
without its permission and, alleging infringement, demanded
damages. In the first instance, the District Court of Munich
followed the legal opinion of the plaintiff and ordered the
defendant to pay damages in the amount of €1,000. The
defendant successfully challenged this decision, with the Court of
Appeals of Munich overruling the decision of the first instance in
the appellate proceedings. The plaintiff then appealed to the
Federal Court of Justice, seeking revocation of the decision of the
Court of Appeals.
Decision of the Federal Court of Justice. The
reasoning by the Federal Court of Justice is not yet published;
however, the court states in a press release that the Court of
Appeals of Munich correctly assumed that the mere linking of
content available on a third-party web site by way of framing is
not considered "making publicly accessible" within the
meaning of Article 19a of the German Copyright Act
(Urheberrechtsgesetz). This is supported by the argument
that the owner of the third-party web site autonomously decides
whether the copyrightable work remains accessible to the general
public or not.
However, the court raises the question whether this type of
framing may violate Article 3(1) of the Directive 2001/29/EC of the
European Parliament and of the Council of May 22, 2001 on the
harmonization of certain aspects of copyright and related rights in
the information society ("Copyright Directive") and, as a
result, also violates Article 15(2) of the German Copyright Act.
Article 15(2) of the German Copyright Act provides the exploitation
right of the author, and this right must in itself be interpreted
in light of Article 3(1) of the Copyright Directive. The wording of
Article 3(1) is as follows:
Right of communication to the public of works and right of
making available to the public other subject-matter:
1. Member States shall provide authors with the exclusive
right to authorise or prohibit any communication to the public of
their works, by wire or wireless means, including the making
available to the public of their works in such a way that members
of the public may access them from a place and at a time
individually chosen by them.
Summary and Prospect. The Federal Court of
Justice has concluded that embedding copyrighted videos on other
web sites in principle does not violate German copyright law.
However, the court indicated that such practice may violate
European copyright laws and therefore asked the CJEU whether this
type of framing may be considered as "making available to the
public" in the meaning of Article 3(1) of the Copyright
Directive, which in return would result in an unauthorized
exploitation of the copyrighted work.
An important consideration for future proceedings might be to
distinguish whether the video is embedded for commercial use or for
private use only. Further, it might be necessary to check whether
the affected video was already uploaded on YouTube with the consent
of the copyright owner.
It is now in the discretion of the CJEU to provide some guidance
whether framing of videos is regarded as violation of European
copyright law, and we are awaiting, as the next step, the opinion
delivered by the Advocate General.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.