Good for injunction debtors: Google suspends the cache

According to numerous decisions, a Injunction debtor do everything necessary to remove the infringement. The corpus delicti often remained in the Google cache - which led to Contractual penalties led. Google has now announced that it will discontinue the cache. This is good news for those who are owed an injunction.

In connection with infringements of rights on the internet, it is important to know that those affected can generally demand that the perpetrator cleans up the internet as if the infringement had never taken place. This means that the perpetrator must remove the illegal content, especially from their own websites or social media channels that they control.

In concrete terms, this means that if someone receives a warning for the unauthorized use of a photo, for example, they must remove the photo in question from their website and delete the image file from the server. In the event of unauthorized use on social networks such as Facebook or Instagram, the person must delete the photo via the user interface of their account in the respective social network.

If the infringer is not in a position to carry out the deletion independently, possibly not even with the support of third parties such as an agency or a programmer, he is not obliged to take this measure. Otherwise, he would be subject to a subjectively impossible demand. Nevertheless, this does not mean that he can remain inactive. On the contrary, he is obliged to exert influence on third parties emphatically and, if necessary, repeatedly so that they carry out the necessary deletion measures (e.g. a business directory).

Google Cache caused numerous contractual penalties

The case law followed the principle that the infringer should not only remove direct infringements from the internet, but also the cache of search engines, in particular that of Google. Warned parties who were not aware of this obligation or did not implement it in full were often confronted with costly contractual penalty claims. Lawyers who did not inform their clients accordingly risked professional liability claims.

Google Cache will be discontinued soon - what does this mean for warned parties?

With the removal of the Google cache, Google will no longer have a cache that needs to be cleaned. This is good news for those who have been warned and have complied.

In a mirror image, the Google cache will be missing as a source of evidence for infringements. If, for example, after a Warning an anti-competitive advertisement was corrected, it was still accessible via the Google cache for a certain period of time.

The caches of other search engines such as Bing, Yahoo or T-Online have hardly played a role in practice to date. I am only aware of a single judgment in which the debtor of an injunction agreement was obliged to request not only Google to delete illegal content, but also other "common" search engines, in this case Yahoo (LG Baden-Baden, judgment of 02.02.2016, Ref. 5 O 13/15 KfH). This could now change, as the focus is shifting.

Whether backlogs in the Wayback Machine will follow in the legal footsteps of Google Cache is unclear. Golem reports that Google is planning to integrate the Wayback Machine into search results, but a final decision has yet to be made. In terms of competition law, we had achieved that no Contractual penalty if old versions of the website remain online in the Wayback Machine. Whether and to what extent this decision can be transferred to other areas of law is still unclear, however. Courts could rule differently in copyright law in particular.