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.