BGH - VI ZR 476/18

BGH - BGH VI ZR 476/18
Court:	BGH (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 17(3)(a) GDPR Article 7, 8, 11, 16 Charter of Fundamental Rights of the European Union
Decided:	22.07.2020
Published:
Parties:
National Case Number/Name:	BGH VI ZR 476/18
European Case Law Identifier:
Appeal from:	OLG Köln (Germany) 15 U 178/17
Appeal to:	Unknown
Original Language(s):	German
Original Source:	Bundesgerichtshof - Pressemitteilungen (in German)
Initial Contributor:	n/a

The Bundesgerichtshof stayed proceedings and referred two questions to the Court of Justice of the European Union for a preliminary ruling.

English Summary

Facts

The applicant was an authorised officer of one of those companies. In 2015, several articles appeared on the website of a US-American company, whose objective, according to its own statements, is "to make a lasting contribution to fraud prevention in the economy and society through active education and transparency", by critically examining these companies. One of these articles was illustrated with photos of the plaintiffs. The business model of the website's operator was in turn critically reported, among other things with the accusation that she was trying to blackmail companies by first publishing negative reports and then offering to delete the reports or prevent negative reporting for a so-called protection fee. Google was asked to delete the thumbnails.

Holding

The Bundesgerichtshof stayed proceedings and referred two questions to the Court of Justice of the European Union for a preliminary ruling: - Is it compatible with the rights of the data subject in Article 7,8 CFR to weigh up the possibility to file an interim injunction as legal protection and receive a preliminary clarification on the right to get delisted as a decisive factor in the decision on conflicting rights and interests arising from Article 17(3)(a) GDPR?

- Can the BGH oblige the defendant to pay the costs if third parties placed photos which are shown as a thumbnail in the search engine of the defendant, even if the third party's website is linked but not specifically named when the thumbnail is displayed by the search engine and the resulting context is not displayed by the internet search service?

Comment

This summary is based on a press release, because the judgment is not yet available. The Bundesgerichtshof paused proceedings and referred two questions to the Court of Justice of the European Union for a preliminary ruling, this will be followed-up.

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

The applicant holds positions of responsibility for or participates in various companies providing financial services. The applicant is his partner and was an authorised officer of one of those companies. In 2015, several articles appeared on the website of a US-American company, whose objective, according to its own statements, is "to make a lasting contribution to fraud prevention in the economy and society through active education and transparency", which critically examined the investment model of some of these companies. One of these articles was illustrated with photos of the plaintiffs. The business model of the website's operator was in turn critically reported, among other things with the accusation that she was trying to blackmail companies by first publishing negative reports and then offering to delete the reports or prevent negative reporting for a so-called protection fee. The plaintiffs claim to have also been blackmailed. They request that the defendant, as the person responsible for the internet search engine "Google", refrain from showing the articles in question in the results list when searching for their names and the names of various companies and from displaying the photos of them as so-called "thumbnails". The defendant stated that it was unable to assess the truth of the claims made in the linked content. The Regional Court has dismissed the action. The plaintiffs' appeal was unsuccessful.

The Bundesgerichtshof stayed proceedings and referred two questions to the Court of Justice of the European Union for a preliminary ruling.

First, the Court of Justice of the European Union must determine whether it is compatible with the rights of the person concerned to respect for his or her private life (Article 7 CFR) and to protection of the personal data relating to him or her (Article 8 CFR) to weigh up the conflicting rights and interests arising from Article 17(3)(a) General Data Protection Regulation against the person responsible for an internet search service in the context of the examination of his or her request for a listing. 7, 8, 11 and 16 CFR, if the link whose listing is applied for leads to content which contains factual claims and value judgments based on factual claims, the truth of which the person concerned denies, and the legality of which stands and falls with the question of the truthfulness of the factual claims contained therein, the decisive factor to be taken into account is also whether the person concerned can reasonably be expected to accept the content of the link. e.g. by means of an interim injunction - could obtain legal protection against the content provider and thus bring about at least a preliminary clarification of the question of the truth of the content proven by the person responsible for the search engine.

Second, the Bundesgerichtshof asks for an answer to the question whether, in the case of a request for a listing against the person responsible for an internet search service who, in a name search, searches for photographs of natural persons who have been placed on the internet by third parties in connection with the person's name, and who shows the photographs he has found in his results overview as thumbnails, the Federal Court of Justice is entitled, in the context of the rules laid down in Article 12(b) and Article 12(1)(b) Federal Basic Law, to order the defendant to pay the costs. 14(1)(a) DS-RL / Article 17(3)(a) DS-GVO, the context of the third party's original publication must be taken into account to a decisive extent, even if the third party's website is linked but not specifically named when the thumbnail is displayed by the search engine and the resulting context is not displayed by the internet search service.