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On November 10th last year, Health Minister Jens Spahn (CDU) and Google top manager Philipp Justus announced a collaboration at a joint press conference.
The Ministry's National Health Portal, which was recently launched - an Internet site with extensive information on diseases, their symptoms and treatment options - has since been treated as a particularly preferred source of information by the Google search engine, and references from the tax-financed portal have since been highlighted directly on Google's search results pages presents.
This agreement between the ministry and Google was cashed in by the Munich Regional Court on Wednesday: In an urgent procedure, the presiding judge Gesa Lutz assessed the cooperation as a cartel violation.
The plaintiff against the Federal Republic of Germany on the one hand and against Google on the other hand is the company Netdoktor GmbH, which is part of the media company Hubert Burda Media.
Netdoktor is one of the offers on the Internet that search engines often refer to when looking for diseases such as hay fever, skin cancer or irritable bowel syndrome.
The Netdoktor company sees Google's preference for the national health portal as a disadvantage for its own business.
Federal Health Minister Spahn himself formulated in a press release that the cooperation with Google intends to prioritize the tax-financed portal: "Anyone looking for health topics on the Internet will find our national health portal even easier in the future." And, even more clearly: "If you google health , should end up on the national health portal in the future. "
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The district court justified its remarkable and presumably momentous decision with the fact that the agreement with Google “restricts competition in the market for health portals”.
In other words, because the information from the ministry can be found in a highlighted box on the right side of the screen or at the top of the smartphone search, free competition is hindered.
The visibility of privately financed offers is accordingly "severely restricted because the info boxes divert the attention of users from the general search results".
The plaintiffs from Netdoktor were apparently able to conclusively demonstrate to the court that the lower visibility has already led to declining hits within a short period of time - and therefore also to a loss of advertising income, which is financed by offers such as Netdoktor or pharmacy shop.
The advantages of working together couldn't outweigh the disadvantages.
Ultimately, there is a threat of a “displacement of reputable private health portals” and thus also a “reduction in the variety of media and opinions”.
Burda board member Philipp Welte also sees it this way: The proceedings are about “nothing less than freedom of the press”.
Welte is particularly critical of the fact that the Ministry of Health indirectly subsidizes “the marketing of the search monopoly Google” with taxpayers' money.
On the one hand, Welte is highlighting Google's market dominance of over 90 percent user share in web searches in Germany.
On the other hand, he points out that Google's business model, the sale of online advertising space, is favored by highlighting the info boxes.
The cooperation “overrides free competition”.
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It was precisely this interpretation that the federal government had massively denied in a response to a minor request from the FDP parliamentary group.
The answer said: “There is no distortion of competition in the press market.
Neither the national health portal itself nor the reproduction of its content in internet search engines affect the private-sector press market. ”The portal does not represent a product under press law at all and does not offer any“ journalistic articles ”.
However, the Munich Regional Court does not see precisely this separation into state and private-sector information, which the Ministry emphasizes.
In particular, the government's response to questions from the FDP parliamentary group raises questions on which the ministry has not yet commented.
Accordingly, there is “no contractual relationship” between the Federal Ministry of Health and Google.
And further: “There is no written or oral agreement.” But is that possible - plan, implement and announce a cooperation, with a press conference, ministers and Google managers, without discussing this with one another in writing or orally?
This allegation by the government should be clarified in a main proceedings by the Munich Regional Court.
Of course, it is also possible that the Ministry and Google will pull the rip cord in view of the criticism and no longer display the info boxes.
When asked, the ministry replied: “The Federal Ministry of Health takes note of the judgment.
After evaluating the decision, the BMG will decide on the next steps.
The offer of the national health portal as such remains unaffected by this judgment. "
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In fact, in the urgent proceedings, the regional court did not decide whether the national health portal itself is permissible.
Such a request by the applicant Netdoktor was withdrawn, but could come back on the agenda in a main proceeding.
When asked, Google replied that it was "disappointed that the Munich Regional Court has now prohibited the inclusion of such factual and scientifically sound information from the Federal Ministry of Health in Google searches".
Examine the decision and the available legal remedies.
In a more detailed blog post it is said that the display of the information of the ministry decidedly does not hinder the offers of other providers.
The info boxes are "independent" of the placement of the search results.
This assertion must also be examined.
Independently of the complaint by Netdoktor, the case will be examined by other institutions.
The State Media Authority of Hamburg / Schleswig-Holstein initiated media law proceedings against Google last year because the cooperation could discriminate between journalistic and editorial offers.
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The Scientific Service of the Bundestag is also examining whether the cooperation threatens the freedom of the press.
The publishers' associations have also sharply criticized the cooperation - as expected.
The process in Munich is not only important for the operators of health portals.
In principle, many collaborations are conceivable that could lead to Google treating certain information preferentially.
The EU has already imposed cartel fines on Google in the amount of more than eight billion euros on several occasions for abusing its dominant position, including the preferential treatment of its own price comparison service.