The district court has dismissed the lawsuit of a deputy clinic director against a search engine operator – presumably Google – with which Google was to be forced to delete links to negative contributions. The first point in dispute was the passive legitimacy of the search engine operator, i.e., whether the Display of a direct link to infringing content in a search engine already constitutes “cooperation” within the meaning of Art. 28 para. 1 ZGB represents (Link: Swisslex). According to information from the district court, the verdict is final.
The BGer has answered this question in the Judgment 5A_658/2014 i.S. Hirschmann but not answered, because it only dealt with general links, not direct links (deep links) to infringing content (E. 4.2):
The Commercial Court must be agreed that it is not sufficient for participation in the sense described if the website of a medium operated by respondent 1 or the website of respondent 1 itself contains a general link to the website of a newspaper or a radio station which is controlled (in terms of corporate law and economy) by respondent 1. Such a “link” is too unspecific to be able to cause, enable or favor the infringement by a specific media report. Whether the legal situation would have to be assessed differently if respondent 1 had placed specific links to the sued media reports of Radio 24 and/or the Thurgauer Zeitung on its own website or on the website of a press product published by it can be left open.
The BezGer affirms the passive legitimacy of the operator for a direct link to content that violates personal rights, essentially because of the importance of search engines in providing information and because passive legitimacy is considered reasonable in view of the commercial interests of the operator:
6.2.8 The federal court jurisprudence regarding the term ‘participation’ can be described as broad; in particular, it suffices to ‘Favoritism’ of an infringement of personality. Thus, in particular, the person who contributes to the transmission of disputed statements without himself being the direct author or knowing their content or author can be held responsible […].
6.2.9 Search engine operators play a key role in making information on the Internet accessible to a wide range of users. Without search engines, much of the information would be difficult to find for a large part of the public. They have a significant influence on the findability of articles (including those that violate personal rights). In view of the Meaning, which search engines in the dissemination of information cannot be concluded that they would not promote their dissemination by specific links to contributions of websites that infringe personal rights. The passive legitimation is consequently to be affirmed […].
6.2.10 In addition, the defendant, by operating a search engine commercial interests through advertisements which is not disputed by the defendant. There is therefore no apparent reason why search engines should be fundamentally relieved of their responsibility under civil law, especially since the defendant itself also provides the option of submitting deletion requests or having information removed from the search engine, thereby providing a certain content check even does it himself. It should also be noted that legal action can be taken against content that violates personal privacy on foreign providers can be associated with considerable difficulties. In these cases, the only effective means of legal protection to prevent a violation of privacy would often be to have the search engines put into law.
On the merits, however, the District Court dismisses the action because the operator does not adopt the media reports in dispute as its own and because the interest in information prevails.:
6.3.8 In the present case, it is a matter of interpreting the results of investigations. The fact that the criticized passages in the three reports prove to be violating personal rights is therefore not obvious. In view of this and in appreciation of the interests described, the weighing in the present case is to the disadvantage of the plaintiff. This means that even if the three articles in dispute were to be qualified as violating personal rights – which can be left open – the violation would not be unlawful within the meaning of Art. 28 para. 2 of the German Civil Code. ZGBas can be seen from the following considerations.
6.3.9 It is true that the dissemination of untrue facts that violate personal rights is, in principle, always unlawful (BGE 138 III 641 Rec. 4.1.2; BGE 129 III 49 Rec. 2.2). Thus, in connection with unlawful statements by third parties through media professionals, the Federal Court has already held that the dissemination of unlawful statements by a medium can be lawful under certain circumstances. This is to be assumed in particular if the third-party statement is presented completely and truthfully (objectively correct reproduction), is marked as such and does not appear as the original opinion of the disseminator to a certain extent showing the own view (recognizable dissociation) and the knowledge of it is of value for the reader (information interest). Prazeller also wants this case law to be applied to operators of news websites if social media content is included […].
6.3.10 […]. An objectively correct reproduction of the reports is guaranteed, because when clicking on the link, a forwarding to the website of the ‘C.’ takes place, from which the contents are retrieved. Thereby also a recognizable dissociation of the search engine operator to the contents on the web page of the ‘C.’ takes place. Then an interest in information can be affirmed for the reasons already stated. Even if the reporting contained untrue elements, this would be acceptable as an exception within the meaning of the cited case law – given the described involvement of the defendant with its search engine – in view of the weighing of interests carried out in the present case, especially if effective legal protection options are available against the media company in question or against the authorship.