HGer ZH: No deli­sting obli­ga­ti­on of Goog­le due to lack of (here) suf­fi­ci­ent coope­ra­ti­on actions

In its ruling, the Com­mer­cial Court of Zurich had HG220030 of August 21, 2024 to deci­de, fol­lo­wing an action brought by FIFA, whe­ther Goog­le should be pro­hi­bi­ted from dis­play­ing or dele­ting cer­tain search results or lin­king to cer­tain artic­les (i.e. rem­oval and injunc­tion). The back­ground for FIFA was poten­ti­al­ly Repu­ta­ti­on-dama­ging online con­tri­bu­ti­onswhich are still easy to find due to the legal claims – and the dis­mis­sal of the action by the HGer ZH.

The HGer affirms its Respon­si­bi­li­ty for the action brought against Goog­le Ire­land and Goog­le USA at the Swiss place of suc­cess, due to a par­ti­cu­lar pro­xi­mi­ty to the sub­ject mat­ter becau­se of FIFA’s regi­stered office and busi­ness acti­vi­ties in Zurich. Appli­ca­ble was Swiss law pur­su­ant to Art. 139 para. 1 lit. a IPRG (inf­rin­ge­ment of per­so­na­li­ty rights).

Howe­ver, the HGer dis­mis­ses the cla­im on the merits. A Inte­rest in legal pro­tec­tion also exi­sted with regard to the injunc­tion, becau­se the pre-tri­al refu­sal to dele­te the con­tent gave rise to a risk of repe­ti­ti­on. And FIFA was mate­ri­al­ly actively legi­ti­mi­zedbecau­se the artic­les in que­sti­on also con­cer­ned FIFA’s per­so­nal rights (and not just tho­se of its pri­ma­ry representatives).

The main que­sti­on, howe­ver, was the Pas­si­ve legi­ti­ma­ti­on of Goog­le. The HGer refers to the case law of the fede­ral and can­to­nal courts on the joint lia­bi­li­ty of access pro­vi­ders and hosting pro­vi­ders and, based on this, comes to the con­clu­si­on that the Ope­ra­ti­on of a search engi­ne alo­ne is not enough:

Howe­ver, as will be shown below, the mere ope­ra­ti­on of a search engi­ne or the pro­ce­s­sing of infor­ma­ti­on is not suf­fi­ci­ent to be entit­led to be a defen­dant in the pre­sent case. Accor­ding to the case law of the Fede­ral Supre­me Court, a spe­ci­fic act of coope­ra­ti­on is neces­sa­ry for the exi­stence of pas­si­ve legi­ti­ma­cy […]. Accor­din­gly, the defendant’s pas­si­ve legi­ti­ma­cy must be exami­ned indi­vi­du­al­ly for each article.

Abo­ve all, it was unpro­ven that the incri­mi­na­ted artic­les could be found with the search term “FIFA” alo­ne, but only with parts of the tit­les. Even a search using only the name of one of the FIFA repre­sen­ta­ti­ves would not have led to the desi­red result accor­ding to the fin­dings of the HGer (the court appar­ent­ly did not search its­elf and filed the result as notorious).

This is not enough to make a signi­fi­cant contribution:

Accor­din­gly, it is not the defen­dants who estab­lish a con­nec­tion bet­ween the artic­les and the plain­ti­ff, but the sear­cher. Alt­hough the defen­dants pro­vi­de the search engi­ne and enable and thus faci­li­ta­te the fin­ding of artic­les. In the pre­sent case, howe­ver, this acti­vi­ty pro­ves to be inap­pro­pria­te with regard to the artic­les in dis­pu­te. too litt­le con­cre­tein order to be con­side­red a legal­ly rele­vant act of coope­ra­ti­on. The ope­ra­ti­on of a search engi­ne alo­ne is not suf­fi­ci­ent. Accor­ding to the case law of the Fede­ral Supre­me Court, some action on the part of the defen­dant is neces­sa­ry. Not every arbi­tra­ry act that mere­ly “somehow” has a pro­mo­ting influence, but is not suf­fi­ci­ent­ly clo­se­ly con­nec­ted to the offen­se its­elf, con­sti­tu­tes a con­tri­bu­ti­on to the offen­se. Thus, the word “con­tri­bu­te” implies not only an “effect”, but rather a “par­ti­ci­pa­ti­on”. Bet­ween the con­duct of the defen­dant – the ope­ra­ti­on of a search engi­ne – and the artic­les at issue, the­re must be a Rela­ti­on­ship bet­ween cau­se and effect exist. In the pre­sent case, howe­ver, the plain­ti­ff No spe­ci­fic beha­vi­or of the defen­dant that – in addi­ti­on to the ope­ra­ti­on of the search engi­ne – spe­ci­fi­cal­ly enables or faci­li­ta­tes the retrie­val of the artic­les. The plain­ti­ff is unable to show that the artic­les can be found even if the sear­cher does not know them. A suf­fi­ci­ent­ly con­cre­te cau­sal act of coope­ra­ti­on by the defen­dant must the­r­e­fo­re be denied. Wit­hout know­ledge of the artic­les, they can­not be found via the defendant’s search engi­ne. The defendant’s search engi­ne thus repres­ents no con­di­tio sine qua non for the per­so­nal inju­ry, which means that the­re is alre­a­dy a lack of natu­ral causality.

This is not self-evi­dent with regard to natu­ral cau­sa­li­ty. It seems that the HGer ZH is using the figu­re of lawful alter­na­ti­ve con­duct in this case, arguing that if a sear­cher alre­a­dy knows some­thing about the artic­les, they would have found what they were loo­king for wit­hout Goog­le. This can cer­tain­ly be argued; howe­ver, it could just as easi­ly be said that at least some peo­p­le would have given up sear­ching if they had not found the result via Goog­le (sin­ce some peo­p­le con­fu­se Goog­le with the Inter­net). Howe­ver, natu­ral cau­sa­ti­on is sup­po­sed to be a que­sti­on of fact (a que­stionable con­cept becau­se the court has to work with the unpro­va­ble hypo­the­sis of the omit­ted cau­se for the exami­na­ti­on), which may have pre­ven­ted the court from spe­cu­la­ting accordingly.

Also rejec­ted was a Right to era­su­re under the DSGbecau­se the DPA now only pro­tects natu­ral per­sons, wit­hout tran­si­tio­nal peri­ods app­ly­ing in the pri­va­te sec­tor. FIFA appar­ent­ly did not want to or could not justi­fy the dele­ti­on cla­im on behalf of the repre­sen­ta­ti­ves concerned.

Aut­ho­ri­ty

Area

Topics

Rela­ted articles