View source for Rb. Amsterdam - C/13/692003/HA RK 20-302

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|Jurisdiction=Netherlands
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|Court_Abbrevation=Rb. Amsterdam
|Court_With_Country=Rb. Amsterdam (Netherlands)

|Case_Number_Name=C/13/692003/HA RK 20-302
|ECLI=ECLI:NL:RBAMS:2021:1018

|Original_Source_Name_1=Rechtspraak.nl
|Original_Source_Link_1=https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBAMS:2021:1018
|Original_Source_Language_1=Dutch
|Original_Source_Language__Code_1=NL

|Date_Decided=11.03.2021
|Date_Published=11.03.2021
|Year=2021

|GDPR_Article_1=Article 15(1) GDPR
|GDPR_Article_Link_1=Article 15 GDPR#1
|GDPR_Article_2=Article 22 GDPR
|GDPR_Article_Link_2=Article 22 GDPR
|GDPR_Article_3=Article 82 GDPR
|GDPR_Article_Link_3=Article 82 GDPR



|Party_Name_1=Uber
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The Court of Amsterdam partially rejected a challenge brought by Uber drivers against automated termination of their contracts for fraudulent acts. The Court found that the procedure does not constitute automated decision making under Article 22 GDPR. However, Uber still has to partially provide insight into the concrete allegations that led to the decision to deactivate the accounts.  

== English Summary ==

=== Facts ===
The challenge was brought by four Uber drivers, each of whom had received a separate message from Uber stating that their Uber Driver account had been deactivated because Uber had determined that they had violated the applicable contractual terms and conditions of Uber by being guilty of fraud. According to the applicants, Uber's decision was taken completely automatically without meaningful human intervention. The decision led to the immediate termination of the agreement between Uber and the applicants and to loss of income. 

Additionally, according to the applicants Uber violated the principle of transparency by not informing them about the underlying logic, the importance and the expected consequences of the processing for them, not informing them of the type of fraud they are accused of and by not informing them that their accounts would be blocked in the event of fraud. In addition, Uber failed to explain the grounds for the decision in intelligible words.

Uber argued that it did not deactivate the accounts of the drivers solely on the basis of automated decision-making. The controller demonstrated that the decision to deactivate the account of one of the applicants was a result of an investigation which included actions taken by an Uber employee such as carrying out a personal conversation with the driver about consequences of the fraud, followed by a written confirmation. According to Uber, after a fraud signal the driver's access to the Driver app is automatically temporarily blocked until the driver has contacted an Uber employee. Access to the Driver app is reactivated as soon as the driver has made contact.

=== Dispute ===
Does automated termination of contract by Uber fulfil scope of automated decision making under Artcle 22 GDPR? Did Uber violate the transparency principle by failing to inform the applicants about the consequences of the procedure?

=== Holding ===
The Court found that Uber's contract termination procedure does not constitute automated decision making under Article 22 GDPR.  In view of this explanation from Uber, the court assumed that the decision to temporarily block access to the Driver app after a fraud signal was taken automatically, without human intervention. However, this temporary blocking had no long-term or permanent effect, so that the automated decision had no legal consequences or significantly affected the driver.

Subsequently, the Court concluded that the argument of the applicants that they were not informed in advance by Uber about the possible consequences of fraudulent acts is not supported by the facts. After all, it is not disputed between the parties that different conditions apply to the contractual relationship between Uber and the drivers, including 'Community Guidelines', 'Driver Terms' and 'Services Agreements'. 

The Court concluded that for two of the applicants it must have been sufficiently clear from the messages from Uber they received and the explanation that Uber provided to them which fraudulent actions led to the deactivation of their accounts. According to the Court, there is therefore no violation of transparency obligations.

However, two other applicants were in a different position. According to the Court, Uber has not clarified which specific fraudulent actions resulted in their accounts being deactivated. In the Court's view, the decision to deactivate their accounts was insufficiently transparent and verifiable. As a result, Uber must provide them with access to their personal data pursuant to Article 15 of the GDPR insofar as they were the basis for the decision to deactivate their accounts, in such a way that they can are able to verify the correctness and lawfulness of the processing of their personal data.
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== English Machine Translation of the Decision ==
The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.

<pre>
COURT OF AMSTERDAM
Private Law Department

case number / application number: C / 13/692003 / HA RK 20-302

Order of 11 March 2021

in the case of

1[applicant 1],
residing in [residence] (United Kingdom),

2. [applicant 2] ,

residing in [residence] (United Kingdom),

3. [applicant 3] ,

residing in [residence] (United Kingdom),

4. [applicant 4] ,

residing in [residence] (Portugal),

applicants,

lawyer mr. AH Ekker in Amsterdam,

against

the private company with limited liability

UBER BV ,

Located in Amsterdam,

defendant,

lawyer mr. GH Potjewijd in Amsterdam.

The Applicants will hereinafter be referred to separately as [Applicant 1], [Applicant 2], [Applicant 3] and [Applicant 4] and jointly [Applicants] Defendant will be referred to as Uber.

1. The procedure
1.1.
The course of the procedure is evidenced by:

-
the interim decision of 3 December 2020 and the (procedural) documents referred to therein,

-
the official report of the oral hearing of 16 December 2020 and the (procedural) documents mentioned therein.

1.2.
In an interim order of 3 December 2020, the court referred some of the requests of [applicants] to the summons procedure for further processing. In this petition procedure, the requests referred to in the petition of [applicants] under IV and some of the requests under III and V are dealt with.

1.3.
Subsequently, after detention, a decision was taken today. With the consent of the parties, this case was handled jointly with the case with application number C / 13/687315 / HA RK 20-207 to which partly the same applicants and Uber are parties. In that case, an order is also given today.

2. The facts
2.1. Uber is part of an internationally operating concern that offers online services in the transport sector by means of a digital platform. Uber connects passengers to drivers via applications. Passengers use the Uber Rider app, drivers use the Uber Driver app.

2.2.
[Applicants] worked as Uber drivers, using the services of Uber via the Driver app.

2.3.
Uber has drawn up a 'Privacy Statement' (hereinafter: the privacy statement) in which it has included general information about the processing of personal data. This privacy statement states about automated decision-making:

“9. Automated decision-making

We use personal data to make automated decisions relating to use of our services. This includes: (…) Deactivating users who are identified as having engaged in fraud or activities that may otherwise harm Uber, its users, and others. In some cases, such as when a user is determined to be abusing Uber's referral program, such behavior may result in automatic deactivation. ”

2.4.
The [applicants] have each received a separate message from Uber stating that their Uber Driver account has been deactivated because Uber has determined that they have violated the applicable contractual terms and conditions of Uber by being guilty of fraud. [applicant 3], [applicant 2], [applicant 4] and [applicant 1] received this message on July 7, 2018, July 16, 2019, July 2, 2020 and August 4, 2020 respectively. Subsequently, [applicant 1], [applicant 1], [ applicant 2] and [applicant 4] each receive a message from Uber on different dates that includes the following text:

Upon review of your account, we noticed a continued pattern of improper use of the Uber application.

(…)

We are not able to go into great details but the examples of improper use include using your rider and driver account at the same time, creating duplicate accounts, accepting trips without the intention of completing them, claiming false fees or charges, the installation, and use of software which has the intention or effect of manipulating the Driver App and trip details. ”

2.5.
In a letter dated 9 September 2020, [Applicants'] lawyer ordered Uber to undo the deactivation of the accounts and to enable [Applicants] to resume their activities.

2.6.
In emails dated September 18, 2020 and September 25, 2020, Uber informed (the attorney of) [applicants] that it saw no valid reasons for revoking the decisions to deactivate the accounts.

3
3. The dispute
3.1.
After referring part of the application to the summons procedure, [applicants] request in this application procedure - in summary - that the court, by order declared provisionally enforceable:

I. Uber recommends that within one month after the decision has been served on [applicants], the existence of automated decision-making, including the profiling referred to in Article 22 (1) and (4) GDPR 1 , in a current electronic form , and at least in those cases, useful information about the underlying logic, as well as the importance and expected consequences of that processing for [applicants],

II. Condemns Uber to compensate the immaterial damage suffered by [applicants] due to the violation of provisions of the GDPR, plus statutory interest,

III. Uber recommends payment of a penalty of € 10,000 per day for each day or part of the day that Uber fails to comply with the order to be given in these proceedings,

IV. Uber orders the costs of the proceedings.

3.2.
The [applicants] base their request on the following. According to [applicants], Uber's decision to deactivate their accounts was taken completely automatically without meaningful human intervention. The decision has legal consequences and [the applicants] have been significantly affected by it. The decision led to the immediate termination of the agreement between Uber and [applicants] and to loss of income. In addition, deactivation by Uber may result in a driver's taxi license being revoked. [Applicants] have not given explicit permission to Uber for the application of automated decision-making. Nor was its application necessary for the performance of the agreement between Uber and [applicants]. Uber has not taken appropriate measures to protect the rights and freedoms and legitimate interests of [applicants]. [applicants] were not given the opportunity to express their views or to contest the decision. All this is in violation of Article 22 GDPR. The requirements of proportionality and subsidiarity have also not been met.

3.3.
Furthermore, prior to the application of the automated decision-making and / or profiling, Uber did not inform [applicants] about the underlying logic thereof and the importance and expected consequences of that processing for [applicants]. under f, article 14 paragraph 2 under g and 15 paragraph 1 under h GDPR. Uber also violated the principle of transparency because Uber did not inform [applicants] of the type of fraud they are accused of and did not inform [applicants] that their accounts would be blocked in the event of fraud. In addition, Uber failed to explain the grounds for the decision in intelligible words.

3.4.
Due to the violation of the aforementioned provisions of the GDPR, [applicants] suffered immaterial damage estimated at € 750 per applicant. Uber must compensate for that damage under Article 82 GDPR.

3.5.
Uber has put up a defense. According to Uber, the request should be rejected with a joint and several order of [applicants] for the costs of the proceedings, including subsequent costs, plus statutory interest.

3.6.
The arguments of the parties are discussed in more detail below, insofar as they are relevant.

4The assessment
Jurisdiction and Governing Law
4.1.
The court must investigate of its own motion whether the Dutch court has jurisdiction and, if so, whether this court has relative jurisdiction to hear the [applicants] request. This is the case, because Uber is located in the Amsterdam district (Article 4 Brussels I bis Regulation 2 and Article 262 opening lines and under a Rv 3 ).

4.2.
Insofar as the request of [applicants] is based on the GDPR, it is directly applicable as a European regulation. From the fact that the parties also base themselves (additionally) on Dutch law, the court infers that the parties implicitly made a choice of law for the application of Dutch law as referred to in Article 3 paragraph 1 of the Rome I Regulation 4 .

4.3.
It is not disputed between the parties that Uber is to be regarded as the controller within the meaning of Article 4 under 7 GDPR.

The legal framework

4.4.
[Applicants] argue that Uber has infringed their right not to be subject to automated decision-making. They also argue that Uber has not complied with its transparency obligations within the meaning of Articles 13, 14 and 15 GDPR. They request access to the existence of automated decision-making and profiling.

4.5.
The rights and obligations included in the GDPR concern different categories of automated processing of personal data in the context of automated decision-making. The following categories are identified in the Guidelines on automated individual decision-making and profiling 5 :

-
general profiling without decision-making;

-
decision-making based on profiling that is not exclusively automated;

-
exclusively automated decision-making, including profiling, which has legal consequences or which otherwise significantly affects the data subject.

4.6.
In all cases, the controller must provide the data subject with concise, transparent, comprehensible and easily accessible information about the processing of their personal data pursuant to Article 12 (1) of the GDPR.

4.7.
Pursuant to Article 15 (1) of the GDPR, the person whose personal data is being processed has the right to obtain from the controller whether or not personal data are processed and, if so, to inspect those personal data. The purpose of this article is to enable the data subject to become aware of the personal data collected about him / her and to check whether that data is accurate and lawfully processed (see recital 63 GDPR).

Automated decision-making and profiling

4.8.
Pursuant to Article 22 GDPR, [applicants] have the right, subject to a number of exceptions, not to be subject to a decision based solely on automated processing (including profiling), which has legal consequences for them or which otherwise significantly affects them. .

4.9.
In Article 4 part 4 GDPR, profiling is defined as any form of automated processing of personal data in which certain personal aspects of a person are evaluated on the basis of personal data, in particular with regard to his professional performance, economic situation, health, personal preferences, interests, analyze or predict reliability, behavior, location or movements.

4.10.
A decision based solely on automated processing exists if there is no meaningful human intervention in the decision-making process. The Guidelines state that in order to achieve effective human intervention, the controller must ensure that all oversight of decision-making is meaningful and not merely a symbolic act. This intervention must be carried out by someone who is authorized and competent to change the decision. He must include all relevant data in his analysis.

4.11.
The Guidelines further state that the threshold for “significant extent” must be comparable to the extent to which the data subject is affected by a decision that has legal effect. According to the Guidelines, data processing affects someone significantly when the effects of the processing are large or significant enough to merit attention. The decision must have the potential to significantly affect the circumstances, behavior or choices of the individuals involved; have a long-term or permanent effect on the data subject; or, in extreme cases, lead to the exclusion or discrimination of persons. Recital 71 GDPR mentions as examples of automated decision-making:

4.12.
Automated decision-making is permitted, among other things, if the decision in question is necessary for the conclusion or performance of an agreement between the data subject and a controller or is based on the express consent of the data subject (Article 22, paragraph 2, opening words and under a and c GDPR). In that case, the controller must still take appropriate measures, including at least the right to human intervention, the right of the data subject to make his point of view known and the right to challenge the decision (Article 22 (3) GDPR and recital 71 GDPR ).

4.13.
Automated decision-making in the context of an agreement or on the basis of consent is about transparency about the extent to which automated decision-making plays a role in the implementation of the agreement. The data subject must be aware of the possible use of automated decision-making and profiling when entering into the agreement. 6

4.14.
Article 15, paragraph 1, heading and under h of the GDPR provides that the data subject has the right to obtain from the controller an information about the existence of automated decision-making, including profiling, and, at least in those cases, useful information about the underlying logic, as well as the importance and the expected consequences of that processing for the data subject. Articles 13, paragraph 2, heading and under f and 14, paragraph 2, heading and under g GDPR oblige the controller to communicate the existence of automated individual decision-making, including profiling, and the underlying logic of automated decision-making in every provision of information to data subjects.

4.15.
The controller can refuse access if this is necessary for the protection of the rights and freedoms of others (Article 15 paragraph 4 GDPR and Article 41 paragraph 1 sub i UAVG 7 ). It follows from legal history (on the predecessor of the UAVG) that the controller himself is also understood to be 'others' in this context. This provision contains an exception to conferred rights and must therefore be interpreted restrictively. Whether in a specific case there is such a ground that should lead to a limitation or rejection of the application must be decided by the court after weighing up all the interests involved. When invoking this exception provision, the obligation to provide information rests in principle on the controller (in this case Uber).

4.16.
Applying the aforementioned principles, the court assesses the request as follows.

Automated decision-making?

4.17.
[Applicants] argue that it follows from the Uber privacy statement and information published on its website that they are subject to fully automated decisions within the meaning of Article 22 GDPR. That there was no significant human intervention is evident from the standardized and very general messages that [applicants] received from Uber. In these messages, Uber did not explain which specific fraudulent acts [applicants] were guilty of, according to [applicants]

4.18.
Uber argues that it did not deactivate the accounts of [applicants] solely on the basis of automated decision-making, so that Article 22 GDPR does not apply. It will not deactivate driver accounts until it concludes, based on a thorough investigation, that the driver in question has committed repeated or serious fraudulent activity. According to Uber, the text from its privacy statement quoted above under 2.3 does not relate to fraud prevention in the European Union and the United Kingdom, whereby it does not use solely automated decision-making when it deactivates a driver's account.

4.19.
Uber has explained the decision-making process as follows. A specialized team of Uber employees (the 'EMEA Operational Risk team', hereinafter: Risk team) investigates potential fraudulent activities. In doing so, use is made of software with which potential fraudulent activities can be detected. Depending on the severity or duration of the activities, such a signal is followed by a warning to the driver or an investigation by an employee of the Risk team. Employees must adhere to internal protocols with indicators that may indicate various fraudulent activities when conducting the investigation. The protocols require employees to analyze the potential fraud signals and the facts and circumstances to confirm or rule out the existence of fraud. They also use facts and circumstances that they consider relevant on the basis of their knowledge and experience. If, based on the investigation, an employee determines that there is a consistent pattern of fraud, a decision may be made to deactivate the driver's account. This requires a unanimous decision from two employees of the Risk team. In the event of conflicting conclusions, an investigation is carried out by a third employee from the Risk team.

4.20.
According to Uber, [applicants] repeatedly committed fraudulent activity and their accounts were deactivated after the Risk team identified a consistent pattern of fraud. [Applicants] were informed about this in the messages referred to under 2.4. After receiving the summons letter of 9 September 2020 referred to under 2.5, employees of the Risk team conducted another investigation into [applicants]. They have come to the same conclusions. Uber informed [applicants] about this in the messages referred to under 2.6.

4.21.
Uber has explained the following about the fraudulent acts alleged by [applicants]. [Applicant 1] committed fraudulent acts on or before 3 August 2020 by wrongly collecting cancellation costs from Uber. In doing so, [applicant 1] simultaneously used the Uber Rider app and the Uber Driver app and acted as both passenger and driver. The account of [applicant 1] was deactivated after an investigation and assessment by employees of the Risk team on August 4, 2020, according to Uber.

4.22.
According to Uber, the fraudulent actions of [Applicant 2] and [Applicant 4] involve many different activities on or before July 12, 2019 and July 1, 2020, respectively. Their accounts have been deactivated after investigation and assessment by employees of the Risk team, Uber said. .

4.23.
According to Uber, on or before June 4, 2018, [applicant 3] used software that manipulated the Uber Driver app to identify more expensive journeys because the passenger's destination could be viewed before the driver accepted the ride (which is not permitted to cherry pickingto prevent). Using software, Uber has signaled the use of the manipulated app. An Uber employee contacted [applicant 3] by text message and email and examined his account. In a personal conversation on 5 June 2018, an Uber employee explained to [applicant 3] that his account would be deactivated if he used the manipulated app again. Written confirmation of this was sent to [applicant 3] by e-mail dated 6 June 2018. Because [applicant 3] subsequently made use of the manipulated app again on 12 June 2018, his account was deactivated after an investigation by the Risk team, according to Uber.

4.24.
The [applicants] have not disputed the above explanation by Uber about its decision-making process. In the absence of evidence to the contrary, the court will assume that the explanation provided by Uber is correct. On the basis of that explanation, it cannot be concluded that the decision to deactivate the accounts of [applicant 1], [applicant 2] and [applicant 4] is based solely on automated processing. Uber has argued without contradiction that this decision was taken by (at least) two employees of the Risk team on the basis of an investigation conducted by an employee in response to fraud signals. According to the undisputed explanation of Uber, the decision to deactivate the account of [applicant 3] was taken after an Uber employee had investigated the signals about the use of the manipulated app and had spoken to [applicant 3]. In all cases, this involved significant human intervention as referred to in the Guidelines (see 4.10 above).

4.25.
It follows from Uber's explanation of its anti-fraud process that it gave to the hearing that after a fraud signal, the driver's access to the Driver app is temporarily blocked until the driver has contacted an Uber employee. Access to the Driver app is reactivated as soon as the driver has made contact. In view of this explanation from Uber, the court assumes that the decision to temporarily block access to the Driver app after a fraud signal will be taken automatically, without human intervention. However, this temporary blocking has no long-term or permanent effect, so that the automated decision has no legal consequences or significantly affects the driver as referred to in the Guidelines (see 4.11 above).

4.26.
The conclusion is that it has not been found that Uber has taken automated decisions within the meaning of Article 22 (1) of the GDPR with regard to [Applicants]. Since Article 13, paragraph 2, heading and under f, Article 14, paragraph 2, heading and under g of the GDPR and Article 15, paragraph 1, heading and under h of the GDPR only relate to such decisions, the request for access to the existence of automated profiling, and useful information about the underlying logic, as well as the importance and expected consequences of that processing for [applicants].

Violation of transparency obligations?

4.27.
The argument of [the applicants] that they were not informed in advance by Uber about the possible consequences of fraudulent acts is not supported by the facts. After all, it is not disputed between the parties that different conditions apply to the contractual relationship between Uber and the drivers, including 'Community Guidelines', 'Driver Terms' and 'Services Agreements'. These terms include provisions that prohibit fraudulent activity and may result in loss of access to Uber apps.

4.28.
It must have been sufficiently clear to [applicant 1] and [applicant 3] from the messages they received from Uber and the explanations given to them by Uber which fraudulent actions led to the deactivation of their accounts. There is therefore no violation of transparency obligations.

4.29.
This is different in the case of [applicant 2] and [applicant 4]. Uber has not clarified which specific fraudulent actions resulted in their accounts being deactivated. Based on the information provided by Uber, they cannot check which personal data Uber used in the decision-making process that led to this decision. As a result, the decision to deactivate their accounts is insufficiently transparent and verifiable. As a result, Uber must provide [applicant 2] and [applicant 4] with access to their personal data pursuant to Article 15 of the GDPR insofar as they were the basis for the decision to deactivate their accounts, in such a way that they can are able to verify the correctness and lawfulness of the processing of their personal data.

4.30.
Uber's appeal to the exception of paragraph 4 of Article 15 GDPR is unsuccessful. Uber has insufficiently substantiated to what extent providing access to the processed personal data will provide [applicant 2] and [applicant 4] insight into the parameters for fraud detection with which its anti-fraud system can be circumvented.

In this state of affairs, Uber's interest in refusing to inspect the processed personal data of [applicant 2] and [applicant 4] cannot outweigh the right of [applicant 2] and [applicant 4] to access their personal data.

4.31.
The claim for compensation within the meaning of Article 82 GDPR will be rejected. Only with regard to [applicant 2] and [applicant 4] is there a violation of one or more provisions of the GDPR. They have insufficiently substantiated with concrete data that they have suffered immaterial damage within the meaning of Article 6: 106 of the Dutch Civil Code as a result of this infringement. In particular, they did not provide reasons for damage to their humanity or good name or damage to their person in any other way.

Conclusion

4.32.
The foregoing means that Uber must provide access to the personal data referred to above under 4.29. In order to give Uber sufficient time for this, the term within which Uber must provide this information will be set at two months after notification of this decision. For the rest, the requests will be rejected.

Penalty

4.33.
The requested penalty will be rejected. For the time being, the trust is justified that Uber will voluntarily comply with the order for inspection and will endeavor to provide the relevant personal data.

Executable with stock declaration

4.34.
Uber has requested that the decision not be declared provisionally enforceable, because if it were to comply with the request, its interests would be seriously harmed and this will have irreversible consequences for the security of its service and other users. There is a risk that it will have to divulge its trade secrets, namely information about the anti-fraud process. Here too, as above under 4.30, Uber has insufficiently substantiated how providing access to the processed personal data would conflict with its trade secrets. The court therefore sees no reason in what Uber has put forward to declare the decision provisionally unenforceable.

Process costs

4.35.
Each of the parties has been (un) right on some point. Therefore, the litigation costs will be compensated.

5The decision
The court

5.1.
recommends Uber to provide [applicant 2] and [applicant 4] with a copy or inspection of the personal data referred to under 4.29 above, within two months of notification of this decision,

5.2.
declares this decision provisionally enforceable so far,

5.3.
compensates the legal costs between the parties, in the sense that each party bears its own costs,

5.4.
rejects the more or different requested.

This decision was issued by mr. OJ van Leeuwen, mr. MCH Broesterhuizen and mr. MLS Kalff, judges, assisted by mr. ZS Lintvelt, registrar, and pronounced in public on 11 March 2021.
</pre>