Online libel

Late last month, judges at the German Federal Court of Justice in Karlsruhe heard a case argued between an unnamed plaintiff and Google over an online libel case. A German man has sued Google over a Blogspot blog entry - a blogging service owned by Google - claiming that he used a business credit card to pay for "sex club bills." The blog was generally about life on the Spanish island of Mallorca, where the plaintiff resided. Google has lost two previous decisions of this case in lower German courts. The same court last year ruled the New York Times can be sued in Germany over statements on the newspaper's website if there is a strong connection to the country in an article. The court's decision is expected in this case at the end of October.

To learn more about the issues here, Deutsche Welle turned to Dominick Boecker, a Cologne-based Internet lawyer.

Deutsche Welle: Can you lay out this case for us?

Dominick Boecker: It's pretty easy. Google is hosting a blogging platform, where anyone can write anonymously and write whatever goes through his mind. Somebody wrote a message about another person to say that he was using his firm credit card to pay for prostitutes. That's pretty much the case that has to be decided.

So the person who was written about, is now suing Google, right?

Yes, the person is suing Google because he doesn't know and didn't know who wrote this blog, because he is anonymous, or pseudonymous. And the person who was libelled has no chance to know who wrote this article. He searched to see who else might be liable for this blog and he found that the technical service infrastructure host provider might be liable for those writings, if Google knows that this information is false. Under German law and European law, it's pretty much a notice-and-takedown situation where you go to Google and say: "There are lies about me on this blog post so please delete it and make sure it doesn't happen again."

What is the person asking Google to do?

The person is asking Google to take down this blog and to take measurements that this libel doesn't happen again.

What would that mean?

That could me a [blacklist based] on certain keywords, or banning this person's e-mail address so he can't get a new blog. It's a problem because the court will say that Google has to take measurements, but the court won't tell Google what measurements they have to take, just whether or not they are sufficient.

Is the plaintiff seeking damages?

As far as I know, no, just stopping the infringement.

What seems so bizarre about this case, is that you have a German plaintiff, suing in German court, over an offense that happened in Mallorca, in Spain, against an American company. As an Internet lawyer, I would imagine you have to figure out these quetsions of jurisdiction. Here, this has now gone up to the highest court in Germany. Does this question of jurisdiction make sense to you?

There have been a couple of decisions about the questions of international jurisdiction. There was a case where someone had a German trademark and a Danish hotel was infringing on this trademark, or at least the plaintiff argued that, but the webpage of the hotel was in English only, so the court ruled that given that English is not the main language in Germany, this trademark does not apply. Then there was a case where a Russian man was libelled [in Germany] in the English language, but a Berlin court that Germany is not the proper place to sue.

This is an interesting question because it's not clear whether the blog was in English, German or Spanish - this is one of the main aspects of this case where the federal court will base its ruling on.

That seems to be what Google's main argument has been. They seem to be saying: "If you're going to sue us, sue us in the US, we're an American company, this data was hosted in the US, therefore this case should be heard in the US." Does that argument make sense to you?

It does make sense if the blog posting was in English, and then at least I can say that German courts were the wrong place to sue. [Ed.: Based on court documents, it appears that the blog post was made in German.] As far as I know - this case wasn't my case - this is the main argument, and Google is pursuing a second argument if the German courts are the right jurisdiction, which is that "We can take down this blog post, but we have no chance to restrict our users not to publish comparable blog postings in the future."

German law requires technical infrastructure provider to make sure that future infringement won't happen again. That's one of the main problems in IT law - how can a service provider make sure that trademark infringement or copyright infringement won't happen again?

Right, isn't that one of the basic legal principles of the digital age, that generally speaking, service providers aren't responsible for what people use their services for. In the same way that if you use a mobile phone to set off a bomb, someone can't go and sue Nokia.

You can sue anyone you want. That's not the point. The host providers, they can be sued if they are made aware of an infringement. If an infringement occurs, they have to take reasonable steps to make sure that the infringement doesn't take place in the future.

What would that look like?

One could block this person from registering a blog again.

But that's trivial, right?

Yes, but I don't have any better ideas. The measurements of a technical host are pretty limited. It will be interesting to see whether the judges at the federal court will see this point that the possibilities to restrict such claims were minimal.

Interview: Cyrus Farivar
Editor: Stuart Tiffen