In its decision dated 29 January 2015 (13 U 58/14 ) the Higher Regional Court Celle held that a party that signs a cease and desist declaration with regard to certain content of its website, must also ensure through appropriate measures that the content covered by the cease and desist declaration cannot be accessed on the internet. This includes the check of Google’s hit list as Germany’s most popular search engine. If the content is still accessible via Google, the website operator must apply for the deletion of the content from the Google cash and/or the removal of the content that was to be deleted from the website.
The defendant initially advertised the plaintiff’s holiday apartment on his website for rentals without the plaintiff’s consent. Therefore, the plaintiff requested the defendant to cease and desist from such practice. The defendant signed a respective declaration “to immediately cease and desist from advertising the holiday apartment/s of the plaintiff on the website […] as outlined below and thereby creating the impression the plaintiff was a club member and offered his rental objects through the defendant’s internet website for rental purposes:“. This declaration was completed by a photo of a multi-storey apartment building and contained a penalty clause for any non-compliance with this declaration.
Subsequently, the defendant continued to advertise a holiday apartment without a photo but indicating the plaintiff’s address data, the last name and the district of the city, in which the holiday apartment was located. Once the plaintiff took notice of this content, he claimed for penalty payments based on the penalty clause in the cease and desist declaration.
While the court found that the infringing content was still accessible via a Google search, the defendant argued that such content had long been removed from his website and the Google results were data trash and old content, which did not reflect the actual website content.
The court rejected this line of defence and granted the plaintiff a penalty payment based on a violation of the cease and desist declaration.
The penalty would require the defendant’s culpable conduct, which was – according to the applicable statutory provisions – presumed. Hence, the defendant bore the burden of proof to show he did everything to avoid an infringement.
Even if the defendant had the website content deleted, he had to ensure through appropriate measures that the content covered by the cease and desist declaration could neither be accessed on the website itself nor via the Google search engine. In the latter case the defendant as the obligor of the cease and desist declaration would have apply for the deletion of the content from the Google cash and/or the removal of the content that had been deleted from the website.
The court assessed the decision whether the website operator may rely on the search engine operator’s periodic update of the website data instead of proactively approaching the search engine operator as a question of reasonableness (“Frage der Zumutbarkeit”) and rejected this option it in the particular case. Instead the court ruled that the omission of such checks by the defendant’s vicarious agent must be interpreted as the defendant’s organisational fault and that such omission would be attributed to the defendant, according to civil law provisions.
Analysis and consequences
The decision is in line with prior decisions of various Higher Regional and Regional Courts (among others Higher Regional Court Cologne, 15 U 90/09, dated 15 December 2009, and Regional Court Saarbrücken, 9 O 258/08, dated 10 December 2008). On the other hand, it contradicts a decision by the Regional Court Halle (4 O 883/11) dated 31 May 2012 (and a strong opinion in legal literature), which rejected comparable claims. The Regional Court Halle reasoned that a cease and desist declaration does not cover actions before its signing. Hence, the “old” content which was put on the website before a cease and desist declaration, cannot lead to a penalty payment even though it could still be accessed via a search engine. Moreover, a cease and declaration only covers the omission of infringing actions, but not the active approach of search engine operators.
Based on the above it remains to be clarified by the German Federal High Court (“Bundesgerichtshof”), whether German law requires more than a mere omission in case cease and desist declaration on website content. Until then, it is highly recommendable to follow the Higher Regional Court Celle and double check if all infringing contents – also with respect to search engines – are deleted before signing a cease and desist declaration. To be on the safe side not only Google’s search engine as the biggest player on the German market should be checked, but also other well-known engines – such as Bing or Yahoo – in order to avoid legal risks.