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Global Media and Communications Watch The International Legal Blog for the Tech, Media and Telecoms Industry
Posted in Defamation, Internet Photo of Morten Petersenn

Search Engine Operator Liability for Auto-Complete Suggestions

Persistent rumors about the past of Germany’s former first lady, Bettina Wulff, have brought back a yet undecided discussion about search engine operators’ liability for auto-complete suggestions in Germany. The now rebuffed rumors connect Bettina Wulff’s past with allegations such as having worked as an escort girl or as a prostitute. They have been spread out through the Internet by several blogs and articles ever since her husband, the former German president Christian Wulff was nominated for office back in 2010. Resulting from the attraction caused by these rumors, the auto-complete suggestions of search engine operators contained some phrases that could now be subject to a lawsuit filed in front of the Hamburg Regional Court for defamation and libel.

When Bettina Wulff’s name is typed into a search engine, the auto-complete function automatically adds words such as ‘escort’, ‘Prostituierte’ (German for prostitute) or ‘Rotlicht’ (German for redlight), being simply the reflection of search engine’s user behavior analyzed by algorithms. While vehemently denying the allegations, Mrs. Wulff now seeks legal remedies by arguing that a search engine operator perpetuates these rumors and thereby damages her reputation and credit which is contradictory to her exclusive right of publicity.

Do Auto-Complete Suggestions Imply a Defamatory Statement?
According to consistent case-law of the German Constitutional Courtand the German Federal Supreme Court, a breach of one’s exclusive right to publicity presupposes that the impugned statement is viewed as libelous and defaming in its overall context by evaluating all aspects of the individual case.

By applying this principle, the Cologne Regional Court (LG Köln, decision of October 19, 2011, case no.: 28 O 116/11 – in German) ruled in October 2011 that the stand-alone combination of anybody’s name together with auto-complete suggestions do not amount to a defamatory statement or wrongful allegation of facts made by a search engine operator. It concluded that automatically generated search suggestions only reflect the actual searches users have carried out beforehand. Therefore, users will rather perceive them as a mere combination of search key variables than being any meaningful statement by the search engine operator. The Munich Court of Appeal (OVG München, decision of September 29, 2012, case no.: 29 U 1747/11 – in German) came to the same conclusion in a similar case back in September 2011. It ruled that an average user obviously will not understand the suggestions as the search engine operator’s own content, but rather third party content resulting from previous search engine user’s behavior.

Furthermore, both courts pointed out that as long as the suggested words are not being contemplated in their overall context, i.e. together with the actual search results, they do not contain any specific message recognizable for users and thus do not violate someone’s right of publicity. Consequently, only the specific content of the search results could give search suggestions a possible violating meaning. But since the suggested terms were used in non-violating contexts as well, in particular for admissible forms of reporting, an anticipated connection between the sole terms and a certain detrimental content could not be found in general. Thus, the suggestions had an incoherent meaning and the claims were denied.

After all, by applying these principles of the above mentioned court rulings to the present case, it is very doubtful if Mrs. Wulff’s remedies will be successful even though the Hamburg Regional Court is well known for its favorable view with regard to the right of publicity. However, according to consistent case law of the German High Courts, every alleged violation of the right of publicity must be viewed in its overall context by evaluating all aspects individually with the result that an anticipated conclusion by simply transferring rulings from similar cases cannot be made. Therefore, it remains to be seen how the court will decide this famous and much respected case in Germany.