Risk of Contractual Penalty: Cease-and-Desist Order also Includes Google Cache

A website operator obligating itself in a cease-and-desist declaration to refrain from further publishing certain contents on its website must also ensure that such content can no longer be retrieved on the internet. According to a judgment of the Higher Regional Court of Celle (Oberlandesgericht – “OLG”), dated 29 January 2015 (case no. 13 U 58/14), the website operator must at least check whether the content is still retrievable on Google’s hit list, Google being the most popular search engine. If this is the case, the website operator must file an application with Google to have the content deleted from the Google cache or to have the already-deleted content removed from the website.

Background

The defendant operates a website for brokering vacation residences. In a cease-and-desist declaration with penalty clause (strafbewehrte Unterlassungsverpflichtungserklärung), it obligated itself vis-à-vis the plaintiff to refrain from advertising vacation residences of the plaintiff on its (the defendant’s) website. Subsequently, the defendant took the contested advertising off its website. However, six months later, by entering a search term into Google, a subpage of the website of the defendant containing details regarding a vacation residence of the defendant was still retrievable from the Google cache. Accordingly, the plaintiff demanded payment of a contractual penalty (Vertragsstrafe). The defendant objected, asserting that it had already removed the data from the website.

Judgment of the OLG Celle

The OLG Celle regarded the retrievability of the content in question in the Google cache as a breach of the cease-and-desist obligation of the defendant and concurred with the plaintiff. The court held that the party being subject to the cease-and-desist order (“Unterlassungsschuldner”) must ensure, using appropriate measures, that the content encompassed by the cease-and-desist declaration cannot be retrieved either through its own website or by using a search engine. Accordingly, the Unterlassungsschuldner is obligated not only to remove the content in question by modifying or deleting the website, but must also make sure that the content cannot be retrieved, at least via Google, which is the most frequently used search engine. The Unterlassungsschuldner is obligated to check whether the content removed from the website or the deleted websites can still be retrieved on the hit lists of the search engine. If this is the case, then the Unterlasssungschuldner must submit an application to Google for deletion from the Google cache or for removal of the already-deleted content from the website.

However, the court regarded the contractual penalty in the amount of €5,001.00 to be unreasonable and reduced it to €2,500.00, as only a slight breach of the cease-and-desist obligation existed. The defendant had not acted inordinately persistent but had indeed modified the website. The court found that the failure to check the retrievability of the website by means of a search engine, justified only a charge of slight negligence. Moreover, the plaintiff had not proven any damage or produced any evidence that its interests had been harmed.

Note

The decision establishes very extensive affirmative duties for the party liable in a cease-and-desist declaration with penalty clause. The liable party must actively ensure that the content involved can no longer be retrieved—either directly on its website or via a search engine. The court referred to earlier judgments (cf., OLG Karlsruhe, judgment dated 12 September 2012 – 6 U 58/11; Kammergericht Berlin, judgment dated 27 November 2009 – 9 U 27/09; OLG Cologne, ruling dated 5 May 2000 – 6 W 61/99) but ultimately even substantively transcended these decisions. However, in a similar case, the Regional Court of Halle rejected any duty to delete the Google cache, because a cease-and-desist declaration created an obligation only to cease and desist, not an affirmative duty to become active and require deletion of the cache (judgment dated 31 May 2012 – 4 O 883/11). Nevertheless, due to the OLG Celle’s extensive interpretation of the affirmative duties to act, until a final judgment is made, whenever a cease-and-desist order with penalty clause is issued, website operators should at least remove all the concerned content, including advertising, trademarks, or infringements of the person in the Google cache.

Comment

As the defendant had not even required removal from Google, the court could leave the question unaddressed whether there also exists an obligation to review and delete the cache of other search engines. From a legal point of view, there is no reason to assume that this obligation is restricted to Google. Website operates should therefore also monitor the cache of other commonly used search engines and have the data deleted if retrievable. In order to avoid a dispute over the scope of the cease-and-desist obligation, the cease-and-desist declaration should be precisely formulated. Parties seeking the relief of a cease-and-desist declaration (Unterlassungsgläubiger) should include the desired deletion duties in a previously formulated cease-and-desist declaration. The complete exclusion of the duty to delete search-engine caches in the cease-and-desist declaration is, on the other hand, no solution for the Unterlassungsschuldner. The Regional Court of Frankfurt has ruled such cease-and-desist declarations to be insufficient (ruling dated 19 October 2011 – 3-08 O 136/11).

When drafting a cease-and-desist declaration, the parties should also consider agreeing on a jurisdiction. Although pursuant to section 32 of the German Code of Civil Procedure (Zivilprozessordnung), infringements committed on the internet fundamentally invoke the competency of every court (the so-called “flying place of jurisdiction”), the court at the seat of the party against whom relief is being sought is competent to hear the complaint for payment of contractual penalties. Depending on the interpretation of the various court districts of the duties to act of the Unterlassungsschuldner, a certain degree of interpretive freedom is given.