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Constitutional complaint of Internet search engine operators unsuccessful

Press Release No. 86/2016 of 23 October 2016

Order of 10 October 2016
1 BvR 2136/14

By an order published today, the Second Chamber of the First Senate of the Federal Constitutional Court did not admit for decision a constitutional complaint directly challenging the introduction of a copyright-related right for press publishers into the German Act on Copyright and Related Rights (Urheberrechtsgesetz – UrhG). The operators of an internet search engine who lodged the constitutional complaint can reasonably be expected to seek judicial protection before regular courts prior to lodging a constitutional complaint regarding the scope of the copyright-related right of press publishers, the exemptions provided therefor or the amount of remuneration.

Facts of the Case:

Complainant 1 operated an internet search engine until 2014. These services have since been continued by complainant 2. The services offered include, inter alia, a classical search engine service and a specific news search.

With their constitutional complaint, the complainants directly challenge § 87f and § 87g UrhG. The core element of these provisions is the press publishers’ right to decide on the public availability of their press products for commercial purposes. The complainants essentially allege a violation of the freedom of information and freedom of the press laid down in Art. 5 sec. 1 sentences 1 and 2 of the Basic Law (Grundgesetz– GG).

Key Considerations of the Chamber:

The constitutional complaint is inadmissible.

1. The principle of subsidiarity requires that the complainant first pursue all available procedural possibilities for achieving a correction of the alleged violation of the Constitution or preventing an infringement of fundamental rights before lodging a constitutional complaint. A constitutional complaint is therefore inadmissible if judicial protection can reasonably be obtained in proceedings before the regular courts.

2. Measured against this standard, it appears possible and reasonable for the complainants to seek judicial protection by the regular courts before lodging a constitutional complaint.

a) With regard to injunctive relief and damage claims filed by press publishers on the grounds of an unauthorised use of press products, the complainants can obtain judicial protection from the regular courts. There are also specific means of judicial protection against the assertion of copyright-related rights.

b) When interpreting and applying the challenged provisions, the regular courts have the possibility and obligation to adequately take the complainants’ fundamental rights into account. They must consider the interests reflected in the law, balancing the privileged legal position of press publishers against the competing fundamental rights of the operators and providers of internet search engines to process this content, thereby avoiding a disproportionate restriction of fundamental rights. Interpretational leeway exists particularly with regard to the questions of how a “press product” is to be defined and what is to be understood by “the smallest of text excerpts”, which are not covered by the copyright-related right of press publishers. The regular courts must thereby take into account that search engines are operated automatically in a way that will not necessarily allow for the recognition of a press product. When interpreting and applying the challenged provisions, the courts must consider the interest of search engine operators to use text excerpts in a way that does justice to a search engine’s function of enabling users to find information, including online press products, on the internet. The complainants’ fundamental rights can further be taken into account when determining the remuneration owed for the use of the press products.

If, in the interpretation and application of the challenged provisions, the civil courts deem that they cannot sufficiently take the complainants’ fundamental rights into consideration, a decision of the Federal Constitutional Court as to their constitutionality can be sought pursuant to Art. 100 sec. 1 GG.

c) There is no indication that it is unreasonable to refer the complainants to judicial protection before regular courts prior to allowing them to lodge a constitutional complaint. Due to the need for interpretation of the challenged provisions and the interpretational leeway accorded to regular courts, they need to determine the specific meaning of these civil law provisions prior to a constitutional assessment. The complainants did not sufficiently explain why they should benefit from an exception to the general requirement of first seeking judicial protection before regular courts.