Search engines on the internet and other platforms often use autocomplete functions to facilitate search function for internet users. Steered by software algorithm the autocomplete function allocates popular keywords linked to the search terms when an internet user keys in the search term or phrase he wants to look up. The Appellate Court of Cologne (Germany) ruled that such autocomplete functions do not form willful statements of the search engine operator and dismissed the complaint of a plaintiff who claimed infringement of personality rights caused by insulting keyword suggestions (decision of 10 May 2012, file No. 15 U 199/11; click here to read text of the decision in German).
Machine-aided routine or value judgment?
Typing the name of the plaintiff (CEO of a company operating in the field of direct sales of nutritional supplement and cosmetic products) in the search box of the defendant’s platform, internet users found keyword suggestions linking the terms “Scientology” or “fraud” to the name of the plaintiff. The plaintiff claimed infringement of personality rights and required a cease and desist undertaking and compensation payments by the search engine operator who, on the contrary, argued that such keyword suggestions appearing during the typing process in a drop-down menu are triggered by pure machine-aided algorithms considering precedent search requests by other internet users (ranked according to frequency).
No willful statement, no infringement of personality rights
The Higher Regional Court of Cologne took the view that keyword suggestions produced by autocomplete function algorithms do not form a willful statement of the search engine operator and therefore denied an infringement of personality rights of the persons concerned and declined any defamatory statement detrimental to the commercial operation of the plaintiff. In the view of the Court the average internet user does not reckon keyword suggestions displayed in real time as a statement or value judgment of the provider who runs the search engine. Instead the judges considered that the keyword suggestions delivered in a split second technically derive from precedent search queries of other internet users being evaluated automatically. On these grounds the Appellate Court of Cologne refused provider liability of the search engine operator and dismissed the claim.
Look outside the box – different views in Europe
The judgement of the Court of Cologne is in line with former decisions of other German courts (cf. Morten Petersenn’s spotlight on a court proceeding related to Germany’s former first lady, Bettina Wulff) which predominantly deny allegations of infringement caused by autocomplete function services. In contrast, search engine operators have been successfully sued in Italy (cf. Tribunale Ordinario di Milano, court order of 24. March 2011, file no. 10847/2011) and France (cf. Cour de cassation – Première chambre civile, Arrêt n° 832 du 12 juillet 2012 (11-20.358), click here to read the text of the decision in French).
End of story?
The decision of the Higher Regional Court of Cologne is subject to a revision by the Federal Supreme Court (file no. VI ZR 269/12) that may render a final decision on that issue for civil claims filed in Germany. Taking the deviant decisions in the European member states into account, ground-breaking judgement of the European Court of Justice would be welcome.