August 21 2012
Since 2009 the Google search engine has offered in Switzerland a tool called 'Google Suggest'. Google Suggest provides two services to the internet user:
Using a database, the tool reflects the search terms that are used most frequently by users of the same language and territory in a specific timeframe, and also takes indexed web content into consideration. The search terms displayed in Google's search engine are generated automatically, using an algorithm.
It can happen that the entry (eg, a person's name) leads to unfavourable suggestions (if numerous other users have conducted searches with that name and a specific unfavourable search term). In several Western European countries, aggrieved parties have taken legal action against Google for alleged unlawful infringement of their personality. The outcome and reasoning of the respective decisions appear to differ considerably.
The Swiss courts rendered a first decision relating to Google Suggest on August 5 2010, and upheld it on February 12 2011.(1) The Robert Kennedy College (anonymised as the Albert Tanner Institute) in Delemont, in the canton of Jura, asked the Civil Court of First Instance for interim relief to the effect of ordering Google to delete certain search term suggestions from its search engine.
When a user typed 'Robert Kennedy College' (or part of the name) into the English version of Google.ch or into Google.com, the search term 'Robert Kennedy College scam' was suggested, 'scam' being synonymous with cheating or fraud. The college argued that the suggested term implied that the college was involved in fraudulent activity. According to the college, such indication constituted an unlawful infringement of its personality.
The college based its request for interim relief on Article 28 of the Civil Code, which states that:
"Any person whose personality rights are unlawfully infringed may apply to the court for protection against all those causing the infringement. An infringement is unlawful unless it is justified by the consent of the person whose rights are infringed or by an overriding private or public interest or by law."
The college further based its request on Article 3(a) of the Federal Law against Unfair Competition, which states that anyone who disparages another person or his or her goods, works, services, prices or business circumstances by incorrect, misleading or needlessly injurious statements shall be deemed to have committed an act of unfair competition.
Google argued that the suggestions displayed by means of Google Suggest were mere search suggestions, and not allegations by Google itself. Google further argued that the ordinary internet user was fully aware, when reading the suggestions generated by Google Suggest, that Google does not make any substantial statements with its search term suggestions. Google argued that any possible infringement of the college's personality was not caused by the search suggestions, but rather by websites containing the term 'scam'. Finally, by explaining the technical operation of Google Suggest, Google pointed out that the search suggestion 'Robert Kennedy College scam' was a result of numerous searches by internet users in the same language and territory, in a specific timeframe.
The Civil Court of First Instance denied the college's request, and this decision was upheld by the Jura Cantonal Court at second instance. Referring to Google Suggest's technical mode of operation, the cantonal court pointed out that the search suggestion 'Robert Kennedy College scam' was not a statement from Google itself, but merely a search proposition. The court decided that search engines do nothing more than identify websites corresponding to certain criteria. As they operate automatically, search engines are unable to assess the content of the search results that appear following a specific search. According to the court, it is inappropriate to impose on search engine operators the same responsibility as is imposed on editors of traditional media without the risk of making internet access much more expensive or even impossible. The court also analysed the question of whether Google was obliged to eliminate a specific search suggestion after being informed by the aggrieved party of an alleged unlawful infringement of personality. The court rejected such an obligation, since it would result in the type of censorship prohibited by Article 17(2) of the Constitution. Therefore, the court denied an unlawful infringement by Google Suggest of the college's personality.
Moreover, the court observed that search engines such as Google contribute to the realisation of the fundamental right of freedom of information, and that therefore a possible infringement of personality was justified by an overriding public interest. The court concurred with Google that an internet user must have access to all the information available on the Internet, not only to such information as presents service providers and suppliers in a favourable light. The college's request for interim relief based on Article 28 of the Civil Code was denied.
The court also rejected the college's request for interim relief based on Article 3(a) of the Federal Law against Unfair Competition by arguing that the college's association with the term 'scam' by Google Suggest did not constitute a disparaging statement and that, in any event, freedom of information would prevail as an overriding public interest.
The decisions of the two Swiss courts are remarkable since they conflict with several decisions rendered in France and Italy in similar cases:
However, two decisions of the German courts took a different approach:
At first glance, the French and Italian courts appear to have arrived at opposite conclusions to the Swiss and German courts in cases with similar and comparable facts. However, in a closer examination of the decisions, they do not appear wholly incompatible.
To start, does Google Suggest provide for a statement by Google? Does it provide for a statement at all? It could be argued that search terms entered by users in search engines are questions rather than statements. Even if they were statements, this might be irrelevant from a legal point of view, since they are not initially public statements. However, these individual search terms are collected, compiled and ultimately published by Google Suggest. In addition, Google Suggest not only uses previous search terms as its basis, but also takes the indexed content of websites into account. Therefore, they do become public statements.
But are these statements made by Google, as the French courts held? Certainly not, because the underlying algorithms are human creations (as argued by the French courts). The statements are made by website content providers and search engine users, not by Google itself. However, these statements may be attributed to Google if it is found ultimately to endorse them.
The next issue is that of providers' privileges as set out in the E-Commerce Directive (which several courts held did not apply). What type of provider is involved in this case? Apparently, Google Suggest does more than a mere access provider would do. However, it does less than a content provider would do, since new content is not generated; rather, existing content is 'recycled' by machine-driven algorithms. It seems fair to afford Google Suggest privileges similar to those enjoyed by hosting and caching providers. This means that Google would not have a duty to eliminate potentially infringing suggestions in advance, but rather only upon notice. However, this contradicts the position taken by the Swiss courts.
The freedom of information issue raised by the Swiss (and German) courts is a fair argument against censorship. However, contrary to the findings of the Swiss courts, it does not justify infringing statements in general. Rather, the private interest of the individual must be balanced against the public interest in freedom of information on a case-by-case basis.
The conclusion appears to be that potentially infringing search term suggestions should be removed upon notice. However, Google Suggest has no general duty to monitor for potentially infringing statements without notice. Denying any duty of intervention as the Swiss courts does not seem appropriate; nor does preventive elimination, as held by the French and Italian courts. In this case, it seems that the German courts made the correct decision. But it remains to be seen whether the Swiss courts will take this into account in future cases on the issue.
For further information on this topic please contact Roland Mathys or Christoph Zogg at Wenger Plattner by telephone (+41 61 279 7000), fax (+41 61 279 7001) or email (email@example.com or firstname.lastname@example.org).
(1) Jura Cantonal Court, decision of February 12 2011, CC 117/2010 (confirming the Civil Court of First Instance, decision of August 5 2010), available at www.jura.ch/Htdocs/Files/Justice/Documents/CC2010117.pdf?download=1.
(2) Paris Court of Appeal, decision of December 9 2009, available at www.legalis.net/spip.php?page=jurisprudence-decision&id_article=2804.
(3) Paris Court of Appeal, decision of December 14 2011, available at www.legalis.net/spip.php?page=jurisprudence-decision&id_article=3303 (confirming Paris Tribunal de Grande Instance, decision of May 18 2011, available at www.legalis.net/spip.php?page=jurisprudence-decision&id_article=3169).
(4) Paris Tribunal de Grande Instance, decision of September 8 2010, available at www.legalis.net/spip.php?page=jurisprudence-decision&id_article=2985.
(5) Milan Ordinary Tribunal, decision of March 31 2011, 10847/2011, available at www.piana.eu/files/ under the title of "Autocompletion brings liability".
(6) Hamburg Higher Regional Court, decision of May 26 2011 - 3 U 67/11 (in confirmation of Hamburg Regional Court, decision of January 9 2009 - 324 0 867/06), CR 10/2011, pp 667-672, available at http://rechtsprechung.hamburg.de.
(7) Munich Higher Regional Court, decision of September 29 2011 - 29 U 1747/11 (in confirmation of Munich Regional Court I, decision of April 7 2011 - 4 HK O 14409/09), CR 2/2012, pp 126-128, available at http://dejure.org.
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