At the end of January the civil chamber 24 of the Hamburg Regional Court (324 O 264/11) announced the eagerly awaited judgement of the former president of the FIA, Max M., against Google. The matter in dispute are numerous photos showing the plaintiff’s picture as well as his special posture, all of which can be found via the defendant’s search engine. The photos originate from video shootings made in a room safeguarded against unauthorized inspection in which, amongst others, the plaintiff was photographed. Single pictures were also published in the British tabloid “News of the World” in a perfect way to attract the readers. The publications dated back to 2008. At that time the plaintiff successfully started civil proceedings against all sources which were publishing such photos and of whom he became aware. The plaintiff has successfully sued every source known to him that has published photos of him.
Despite the successful proceeding under civil law against the numerous media that had published the photos at issue, the photos were later on found via the internet and via the defendant’s search engine again and again. The plaintiff then sued the publisher of the photos. However, the photos were published again via the internet from another source. These pictures could be found on the search page of the defendant, amongst others via the function “image search” or “similar images”.

In the further course the plaintiff requested the defendant not to disclose the photos of him to any third parties via the defendant’s search page. In particular, he requested the defendant to take all appropriate measures in order to avoid that the photos are shown via the defendant’s search engine. The defendant was requested to set a specific filter so that these pictures could not be made accessible to third parties by using the search machine.

By a privately commissioned opinion the plaintiff had shown that without greater technical programming an amendment of the so-called “crawlers” would be possible in order to filter and no longer disclose the photos in question. The defendant had contested that a software of image recognition could be developed on a reasonable efforts basis by which it would be possible to filter the photos within a reasonable time frame. The defendant’s obligation to use a filter system of whatever kind would be a contradiction of the case-law of the Court of Justice of the European Communities. Furthermore, no obligation existed to take preventive measures outside the area of the infringement of Intellectual Property Rights.

The Regional Court of Hamburg assumed that it had local jurisdiction. The plaintiff had lodged claims arising from tort. Decisive for this is the place where the harmful event occurred. The photos in question could have been inspected in the Federal Republic of Germany and in the catchment area of the Hamburg Regional Court. Hence, a sufficient domestic connection is given which empowers the court to act.

The person sustaining damage can lodge a cease and desist order against the provider of an internet forum without taking action against individual persons. With reference to the decision of the Federal High Court of Justice (VI. ZR 101/06) the chamber has held that the provider’s responsibility for online articles does not cease just because the person sustaining damage is not aware of the identity of the author. Furthermore, it should be noted that the plaintiff has conducted several proceedings because of the photos in question and he has also obtained injunctive relief. Even if one considered it first to be necessary to assert a claim against the relevant author or provider, this obligation has been fulfilled in the present case because the plaintiff has immediately taken action against the numerous infringements.

The facts of the case are governed by German law. The cease and desist order is substantiated in accordance with § 823 section 2 1004 sentence 1, sentence 2 German Civil Code – in conjunction with §§ 22, 23 KUG. Due to the fact that these photos invaded the plaintiff’s private sphere and at the same time violated his right to his own image and his general right of personality, the cease and desist order is well-founded. The plaintiff is clearly to be identified on the photos.

The public dissemination of the photos, without the plaintiff’s consent, infringes the general right of privacy of the plaintiff which is protected in accordance with the Basic Law and in accordance with the European Convention on Human Rights. The photos were taken in a room shielded from the public eye. The photos belong to the plaintiff’s private sphere.

The defendant is responsible to cease and desist from distributing the images.

The liability of the party having caused the problem is given in the present case. However, it is not fully applicable. Referred to the obligations relating to behaviour and the extent of same the chamber 24 of the Hamburg Regional Court refers to the decision of the 6th Civil Senate of the Federal High Court of Justice (VI. ZR 269/12). Accordingly, the providers of a search machine are not fundamentally obliged to offer an additional search function. A corresponding preventive filter function may be needed for special cases like for instance child pornography, however, this filter function could not prevent from all kinds of violation of the personal right. The provider of an internet search machine is only under a duty to review if he acquired knowledge of the infringement. If a person concerned informs the provider of an internet search machine about an infringement of his personal right, the provider of the search machine is under an obligation to avoid such infringements in the future. This duty to review an item on the website, in particular the preventive duty to review, is contingent on a breach of a duty of monitoring which must be reasonable and feasible.
It is therefore not relevant to know as to whether the plaintiff’s references prior to the proceedings were sufficiently specific. Due to the fact that in the present case an infringement of the plaintiff’s private and intimate sphere was clearly at hand, there was no need of any considerations in respect of the protection of the general personal right of the plaintiff and the Communication Law as well as the right to freedom of expression of the defendant.

The defendant’s search machine is not only of purely technical, automatic and passive nature. The defendant browses the internet by means of a software, saves the image files also for reasons of efficiency as soon as the same are displayed on own servers and he is linking these with the enquiries of users. He by no means simply restricts himself to the provision of one information for the third party access. The defendant himself creates the link between the contents, in the present case the photos. Due to the fact that the photos shown originated from the defendant, it could be criticized in this respect, e.g. regarding the search function of photos, that the defendant had not taken sufficient requirements in order to exclude the infringement of the rights of third parties. Due to the fact that the plaintiff’s general right of privacy was severely violated, the weighing of interests is clearly to the defendants’s disadvantage. He must take sufficient measures to make sure that a filter is set which prevents photos from being made available via his search engine showing the plaintiff in his intimate sphere.

The Regional Court further examines the question of effort required as well as the technical function of the image recognition software and concluded that this additional effort can reasonably be asked of the defendant in view of the severity of the infringement of the plaintiff’s rights.

Author: Eckard Nachtwey (Attorney at Law)