Digital Cleaning Crew: BGH Expands Deletion Obligations for Media

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A false headline spreads quickly online. But recapturing it is often like a Sisyphean task. Anyone who makes an untrue factual claim must also take care of its disappearance in the digital age – and more thoroughly than many publishers might like. In a ruling published on March 31, the Federal Court of Justice (Bundesgerichtshof, BGH) emphasized that a claim for removal also extends to copies and archived versions. The Karlsruhe court thus strengthens the rights of affected individuals against uncontrolled dissemination on the internet (Ref.: VI ZR 157/24).

The trigger for the lengthy legal dispute was a report by the Bild newspaper in 2022. The tabloid had written about the birth of Helene Fischer's daughter, claiming it was a home birth. In reality, the child was born in a clinic.

What may initially sound like a trivial matter caused strong reactions: As the topic of home births is sometimes heatedly discussed on social networks, the pop queen faced criticism. Bild did correct the mistake. However, digital fragments remained on other websites and in archives.

The Internet as a Liability Trap

Legally, this claim is based on the general right of personality with the civil law claim for cessation of unlawful conduct according to Paragraph 1004 of the German Civil Code (BGB). The goal is to end a continuing unlawful state. The BGH makes it clear here that a special duty of care applies on the internet. As long as a false claim is retrievable, the impairment continues. The original publisher remains responsible as long as the copies are directly attributable to their actions.

In the ruling it states: “The claim for removal of a continuing impairment by untrue factual claims retrievable on the internet may also include the obligation to work towards the deletion of publications made by third parties.” Thus, the VI Civil Senate acknowledges that the “typical dynamics of the internet” – i.e., automatic or manual copying of content – are attributable to the original medium. Whoever starts the avalanche must also try to stop it.

Online Archives in Focus

An important point of the decision concerns the role of internet archives such as the Wayback Machine (archive.org). These services store snapshots of websites to document the history of the internet. The Kammergericht Berlin had argued in the previous instance that such archived content no longer had a significant reach: it was not directly findable via conventional search engines, but only through targeted queries within the archive.

The BGH rejected this. For it, mere retrievability is decisive. The reasoning states: “It is decisive that the contested claims are still retrievable and cause a continuing impairment of the plaintiff's general right of personality.” The fact that the content is in the “digital basement” does not matter: it is part of the unlawful state that the publisher has contributed to.

No Proactive Monitoring

Despite the clear expansion of liability, the BGH also sets limits to the “cleaning up afterwards.” Publishers are not required to proactively search the entire World Wide Web for copies of their articles. The burden of research lies primarily with the affected party. However, as soon as the lawyers of a victim of false reporting name specific locations or URLs, the publisher must take action.

The Karlsruhe judges specify the scope of efforts: the medium must inform and admonish the operator of the third-party site or archive: “Working towards this requires the defendant to inform the third party about the untruth of the claim and to request deletion.” The publisher does not have to guarantee that the third party will actually delete it.

The Senate drew a line where other editorial offices copied a report and processed it journalistically. If a medium creates an independent follow-up report, the original publisher's duty to act ends. For such articles, only the respective press organ is responsible, as the editorial decision of third parties breaks the causal link.

Fischer lost on this point. The BGH stated that affected parties cannot demand that a publisher correct the entire press landscape. Here, the only option is to issue a warning to each medium individually.

Cost Trap Despite Partial Victory

Despite the fundamental victory, the singer must bear the majority of the legal costs. Her claims were partly too broad and also related to independent follow-up reports and extensive claims for damages, which the BGH rejected. The dispute value was thus inflated.

Nevertheless, the ruling sends a signal to publishers: “Post and forget” is over. Whoever disseminates falsehoods bears responsibility for their digital lifespan. For providers of web archives, the decision indirectly means that they can expect more deletion requests from German publishing houses in the future.

(nen)