View source for Rb. Amsterdam - c/13/673085 / HA ZA 19-340

{{COURTdecisionBOX

|Jurisdiction=Netherlands
|Court-BG-Color=
|Courtlogo=Courts_logo1.png
|Court_Abbrevation=Rb. Amsterdam
|Court_With_Country=Rb. Amsterdam (Netherlands)

|Case_Number_Name=c/13/673085 / HA ZA 19-340
|ECLI=ECLI:NL:RBAMS:2020:2112

|Original_Source_Name_1=de Rechtspraak - Uitspraken
|Original_Source_Link_1=https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBAMS:2020:2112&showbutton=true&keyword=AVG
|Original_Source_Language_1=Dutch
|Original_Source_Language__Code_1=NL

|Date_Decided=02.04.2020
|Date_Published=23.09.2020
|Year=2020

|GDPR_Article_1=Article 17(1) GDPR
|GDPR_Article_Link_1=Article 17 GDPR#1
|GDPR_Article_2=Article 17(3)(b) GDPR
|GDPR_Article_Link_2=Article 17 GDPR#3b

|EU_Law_Name_1=Article 6 (1) ECHR
|EU_Law_Link_1=https://www.echr.coe.int/documents/convention_eng.pdf

|National_Law_Name_1=Article 14(1) International Covenant on Civil and Political Rights
|National_Law_Link_1=https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf
|National_Law_Name_2=Article 21 Grondwet (Dutch Basic Law)
|National_Law_Link_2=https://www.denederlandsegrondwet.nl/id/vkugbqvdq7wh/hoofdstuk_1_grondrechten
|National_Law_Name_3=Article 21 Grondwet (Dutch Article 5(1) of the Law on the Organisation of the JudiciaryBasic Law)
|National_Law_Link_3=https://www.rechtspraak.nl/SiteCollectionDocuments/Wet-op-de-Rechterlijke-Organisatie_EN.pdf

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|Party_Name_5=
|Party_Link_5=

|Appeal_From_Body=Rb. Den Haag (Netherlands)
|Appeal_From_Case_Number_Name=ECLI:NL:RBDHA:2019:6302 
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The court hold that a deletion of a previous court decision cannot be obtained due to the public interests mentioned in Article 17 (3) GDPR, which override the interest of the data subject whose data are anonymised in the concerned ruling.

== English Summary ==

=== Facts ===
The applicant requested to delete a previous court decision from the website "rechtspraak.nl" according to Article 17 (1) GDPR, because the applicant claims that he/she could be identified by it and therefore creates a reason to deport him/her.

=== Dispute ===
The issue in this case is whether the State is obliged to remove, in whole or in part, the judment of 28 June 2019 of the District Court of The Hague, published in accordance with the anonymisation guidelines, from www.rechtspraak.nl.

=== Holding ===
The court hold that to the extent that the applicant is reasonably identifiable person the applicant cannot obtain the deletion of the data referred to in Article 17 GDPR, because Article 17 (3) (b) GDPR precludes this. By publishing the decision, the District Court of The Hague fulfils its constitutional obligation that judicial decisions must be taken publicly (Article 6 (1) ECHR, Article 14(1) International Covenant on Civil and Political Rights, Article 21 Dutch Basic Law and Article 5(1) of the Law on the Organisation of the Judiciary). Consequently, the applicant does not have the right to incorrect information under Article 17(1) GDPR.

== Comment ==
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== Further Resources ==
* (Dutch) [https://blog.iusmentis.com/2020/12/02/kun-je-eisen-dat-je-persoonsgegevens-uit-een-gerechtelijk-vonnis-worden-gehaald/ Kun je eisen dat je persoonsgegevens uit een gerechtelijk vonnis worden gehaald?]
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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>
 ECLI:NL:RBAMS:2020:2112

Authority
    Court of Amsterdam
Date of pronouncement
    02-04-2020
Date of publication
    23-09-2020 
Case number
    c/13/673085 / HA ZA 19-340
Jurisdictions
    Civil Justice
Special features
    First instance - single
Content indication

    Rejection of a request under Article 17 of the AVG to remove an anonymised utterance from www.rechtspraak.nl.
Sites
    Rechtspraak.nl
    Enriched pronunciation 

Ruling

available at
COURT IN AMSTERDAM

Private law department

Case number / petition number: C/13/673085 / HA RK 19-340

Decision of 2 April 2020

in the case of

[applicant] ,

residing at [residence] ,

the applicant,

appeared in person,

by

the legal person governed by public law

STATE OF THE NETHERLANDS,

having its registered office in The Hague, the Netherlands,

defendant,

Lawyer M.M.C. van Graafeiland, The Hague.

The parties will hereinafter be referred to as [the applicant] and the State.
1 The proceedings
1.1.

The course of the procedure is evident:

    -

    the application, together with its annexes, lodged at the Registry of the District Court of The Hague on 19 August 2019,
    -

    the order of 30 September 2019 of the District Court of The Hague referring the case back to that court,
    -

    the interim decision of 21 November 2019 providing for an oral hearing,
    -

    lodged at the Registry on 27 December 2019,
    -

    the supplementary application, together with the reduction/adjustment application, together with annexes, received at the Registry on 30 December 2019,
    -

    further documents from [the applicant] , received at the Registry on 6 January 2020,
    -

    the minutes of the oral procedure of 8 January 2020 and the (procedural) documents referred to therein,
    -

    the State's letter of 29 January 2020 containing comments on the minutes,
    -

    the (fax) letter of 30 January 2020 from [the applicant] replying to the letter of 29 January 2020 from the State,
    -

    the e-mail messages of 13 February 2020 from the parties to the registry. 

1.2.

After the conclusion of the oral procedure, the Court referred the case to (the internal rekestenrol of) 13 February 2020 for the parties to take a simultaneous document in which they will inform the Court whether the Court of Appeal of Amsterdam has made a decision in the appeal lodged by [the applicant] against the decision of the District Court of Noord Holland of 14 March 2019. In the e-mail messages referred to under 1.1. dated 13 February 2020, the parties informed the Court that [the applicant] had withdrawn its appeal, so that the Court of Appeal will not rule. Subsequently, a date was set for the delivery of the decision. The parties were informed of the postponed date.
1.3.

That decision was taken in the light of the State's comments on the minutes and [the applicant's] response to them.
2 The facts
2.1.

On 28 June 2019, the District Court of The Hague adopted a decision ('the decision') in a dispute between [the applicant] and Google LLC concerning the removal of search results from Google's search engine. In that decision, the Court ordered [the applicant], at Google's request, to pay the costs of the proceedings after it had withdrawn its applications following the oral procedure and to assess the substance of the dispute. The [applicant] brought an appeal against the decision.
2.2.

The decision was published under number ECLI:NL:RBDHA:2019:6302 on www.rechtspraak.nl and rendered anonymous in accordance with the anonymisation guidelines for the publication of judgments on rechtspraak.nl.
2.3.

In a letter dated 11 July 2019, [the applicant] requested the court of The Hague to immediately (within 24 hours) remove the decision from www.rechtspraak.nl on the basis of Article 17 of Regulation (EU) 2016/679 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJEU L 119/1 of 27 April 2016) (hereafter: AVG).
2.4.

On 12 July 2019, the administrative secretary also confirmed the receipt of the removal request to [the applicant] by the District Court of The Hague, as coordinator for requests for information on privacy, and that she was unable to respond within the set period of 24 hours. On the same day [the applicant] responded by stating that Article 17(1) of the AVG provides that the data subject has the right to obtain the deletion of personal data relating to him without unreasonable delay and that the controller is obliged to delete personal data without unreasonable delay.
2.5.

In a letter dated 1 August 2019, the President of the District Court of The Hague wrote to [the applicant] that the request for deletion had been rejected because the business content of a judicial decision as part of the legal analysis falls outside the scope of the AVG and thus outside the scope of the possibilities for deletion of personal data provided therein.
3 The dispute
3.1.

The applicant claims that the Court should declare the decision - in summary - enforceable on a provisional basis and order the State:

    to order the State, within one day of the issue of that order, or at least within a reasonable period to be determined by the court, to remove and keep the order posted at www.rechtspraak.nl;

    within one day after the issuance of this order, or at least a reasonable period of time to be determined by the court, order the State to remove and keep removed the extracts from the order on www.rechtspraak.nl, in accordance with production 1 e of the revised application;

    to pay a penalty payment of €50,000, or at least a sum to be determined by the court, for each breach of the order requested under a, or, at the option of [the applicant], of €500 for each day or part thereof that the State fails to comply with all or part of this order, up to a maximum of €50,000;

    the costs of the proceedings.

3.2.

The applicant's requests are based on Article 17 of the AVG. In summary, it submits that the published decision contains personal data which are traceable to the applicant and which lend themselves to removal. According to [the applicant], the State cannot rely on the exception provided for in Article 6(1)(c) of the AVG, because there is no (statutory) obligation to publish judgments on the internet, not on the basis of Article 6 of the European Convention on Human Rights (ECHR) and Article 121 of the Constitution (Gw). The Besluit Selectiecriteria uit spreektdatabank rechtspraak.nl is not a law. It has been adopted without competence and is not binding. Nor is there any need for publication in the register of judgments. Furthermore, publication is not a judicial task in the sense of Article 23 paragraph 1 opening words and under f AVG.

It is true that the publication of the decision complies with the anonymisation guidelines of the jurisprudence, but these guidelines do not comply with the AVG, because the definition of personal data differs from Article 4 AVG. The [applicant] fears that the anonymised decision will be found on www.rechtspraak.nl and will be used against her in order to blacken her. Even if she is successful in the appeal proceedings, the decision will continue to be published on the internet. In addition, according to the applicant, the publication does not serve any reasonable purpose.
3.3.

The State puts forward a defence and concludes that the application under 3.2(a) should be dismissed as inadmissible or, in any event, that the other applications should be dismissed, and orders [the applicant] to pay the costs of the proceedings.

In summary, the State submits primarily that, according to settled case-law, legal analyses as such do not constitute personal data, so that it is not possible to apply for their removal by relying on the AVG. In that context, the State points out that, by order of 14 March 2019 in a dispute between [the applicant] and the District Court of The Hague concerning the removal of a judgment of 3 June 2015 from www.rechtspraak.nl, the District Court of Noord Holland rejected [the applicant's] application for removal. In that regard, the Court considered that the representation of the capacity of the parties to the proceedings, the facts and the assessment relate to the factual content of a judicial decision, which is determined by rules of procedural law in conjunction with substantive law and is therefore part of the legal analysis itself.

In the alternative, the State submits that, in the light of the provisions of Article 17(3)(b) AVG, there are no grounds for ordering expulsion. In so far as the published decision already contains personal data which can be traced back to [the applicant], there is a basis for doing so within the meaning of Article 6 of the AVG. With the publication on www.rechtspraak.nl, the District Court of The Hague complies with its disclosure obligation arising from the principle of public access to judicial decisions as prescribed in Article 6 ECHR and Article 121 Gw. This general interest of publicity is in contrast to the interest and fundamental right of [the applicant] to protection of her privacy. In order to protect the latter right, the directive provides for an adequate and proportionate measure for the anonymisation of judgments to be published.

Finally, the State submits that there is no evidence of exceptional circumstances making it necessary to proceed with the expulsion of the decision. [the applicant] has not substantiated its claim that it has suffered damage as a result of the publication, whereas, as far as an outsider is concerned, the decision cannot (properly) be traced back to it.
3.4.

The parties' submissions are set out in more detail below, in so far as they are relevant.
4 The assessment
4.1.

This case concerns the question whether the State is obliged to remove all or part of the decision of the District Court of The Hague of 28 June 2019, published in accordance with the anonymisation guidelines, from www.rechtspraak.nl.
4.2.

The request of [the applicant] was filed after 25 May 2018, so that the AVG must be applied to the request. As an EU regulation, the AVG is directly applicable in each Member State (cf. article 99 AVG). The AVG is the successor to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (hereafter: the Personal Data Directive), as implemented in the Personal Data Protection Act (hereafter: the Wbp). The court's starting point is that the rulings of the Court of Justice of the European Union (CJEU) and the Supreme Court handed down at the time of the Personal Data Directive and Wbp also apply now that the AVG is in force.
4.3.

Pursuant to Article 17(1)(c) of the AVG, [the applicant] has the right to obtain the erasure of her personal data if she has objected to the processing of personal data relating to her on the basis of Article 6(1)(e) or (f) of the AVG in accordance with Article 21(1) of the AVG and there are no overriding compelling legitimate grounds for processing. Article 17 paragraph 3, opening words and under b AVG states that paragraph 1 does not apply insofar as processing is necessary for the performance of a task in the public interest.
4.4.

Article 17 of the AVG states that the right to erasure is limited to personal data. The interpretation of the term 'personal data' therefore determines the scope of the right of erasure.
4.5.

Pursuant to Article 4.1 of the AVG, personal data is 'all information about an identified or identifiable natural person'. The term 'personal data' is interpreted broadly by the CJEU. The CJEU has considered that the concept of personal data is not limited to sensitive or personal information but potentially extends to any type of information, both objective and subjective, in the form of opinions or assessments, provided that it relates to the data subject. The latter condition is fulfilled when the information is related to a particular person by virtue of its content, purpose or effect and that person is reasonably identifiable to another person (CJEU 20 December 2017,
C-434/16, ECLI:EU:C:2017:994).
4.6.

The judgment of the CJEU of 17 July 2014 (ECLI:EU:C:2014:2081) is also relevant to the assessment of the application. In this case, the CJEU considered - in summary - that although a legal analysis may contain personal data, it does not in itself constitute such data within the meaning of Article 2(a) of the Personal Data Protection Directive. Unlike the data which may constitute the factual basis for the legal analysis, such an analysis cannot itself be checked and corrected by the data subject. That is not what the Data Protection Directive provides for. In its judgment of 16 March 2018 (ECLI:NL:HR:2018:365), the Supreme Court - with reference to the considerations of the CJEU in this judgment - considered that the Personal Data Protection Directive implemented by the Wbp enables the data subject to check that his or her personal data are accurate and have been processed lawfully, in order to protect the data subject's right to respect for his or her privacy. This control could then lead to the rectification, erasure or blocking of the data. The purpose of the action in those proceedings was to obtain information for the purposes of legal proceedings and not the purpose for which the Data Protection Directive was intended, so that, according to the Supreme Court, no personal data within the meaning of the Data Protection Directive were involved.
4.7.

In application of the aforementioned rules and jurisprudence, the court will rule as follows. It follows from the judgment of the CJEU referred to under 4.6. above that the legal analysis relating to personal data cannot be qualified as personal data. Although it can be assumed that the published decision may contain personal data of [the applicant] (see below under 4.8.), in view of the considerations of the CJEU and the Supreme Court referred to above under 4.6., the decision as such cannot be qualified as personal data within the meaning of Article 4.1 of the AVG. This is also apparent from the fact that the content of the court decision does not lend itself to verification of its correctness or to correction. The decision therefore does not fall within the scope of the AVG. The request for removal of the entire decision of www.rechtspraak.nl will therefore already be rejected.
4.8.

The request by [the applicant] to remove the parts of the published decision referred to in production 1 of the revised application will also be rejected. The reasons for this are as follows. The main argument is that a court decision may contain personal data within the meaning of Article 4(1) of the AVG. After all, in the judgment referred to under 4.6 above, the CJEU considered that the data constituting the factual basis for the legal analysis may be personal data within the meaning of the Personal Data Directive. The fact that those factual data are established by a court decision in accordance with the rules of procedural law does not mean that personal data no longer exist.
4.9.

The vast majority of the parts of the decision referred to by [the applicant] in the first part of the revised application do not relate to data which can be traced back to it, but to considerations which concern the content of the judicial decision and with which [the applicant] manifestly disagrees. The request for those parts of the decision to be erased is not consistent with the purpose and purpose of the AVG, which is to ensure the protection of the right to privacy with regard to the processing of personal data (see Article 1 of the AVG). The AVG and the right provided therein to obtain erasure of personal data under certain conditions is not intended to allow control, rectification, erasure or blocking of judicial decisions. The [applicant] is free to raise its objections to the relevant considerations in the appeal proceedings brought by it.
4.10.

At the oral hearing, [the applicant] claimed that the description of her person in the published decision is traceable back to her, because few AVG lawyers combine the functions referred to therein. That description reads as follows:

"The applicant is a doctorate in law and a social sciences researcher. She works as an independent entrepreneur as a lecturer, author and adviser, specialising in constitutional and administrative law, including privacy law and public administration".

The State has disputed that an outsider can use this description to establish that the decision concerns [the applicant]. In addition, it argued that the consideration referred to in the decision is relevant to the assessment of whether [the applicant] is a public figure and therefore forms an essential part of the decision.
4.11.

In so far as [the applicant] is reasonably identifiable to any other person by means of the aforementioned recital, [the applicant] cannot obtain the erasure of the data referred to in Article 17 of the AVG by relying on Article 17 of the AVG, because the provisions of Article 17(3)(b) of the AVG preclude that erasure. By publishing the decision, the District Court of The Hague fulfils its treaty and constitutional duty that judicial decisions must be made in public (Article 6(1) ECHR, Article 14(1) International Covenant on Civil and Political Rights, Article 21 Gw and Article 5(1) of the Judiciary Organisation Act). As a result, [the applicant] does not have at its disposal the right to erroneous information laid down in Article 17(1) of the AVG.
4.12.

The foregoing does not alter the fact that any data processing operation must comply with the principles of proportionality and subsidiarity (see recital 39 of the AVG). The interference with the interests of the data subject must not be disproportionate to the purposes of the processing and must not reasonably be capable of being achieved by other means which are less harmful to the data subject. This balancing of interests must take account of the circumstances of the case (HR 9 September 2011, ECLI:NL:HR:2011:BQ8097).
4.13.

In this case, the District Court of The Hague may reasonably publish the relevant consideration after weighing up the interests involved. According to established case law of the European Court of Human Rights (ECHR), the rationale of the obligation to render a judgment in public is the control of the judiciary by the public and the guarantee of the right to a fair trial. Publication of court rulings via www.rechtspraak.nl is obvious as it allows decisions to be made public to a wide audience in an easily accessible way. The interest of [the applicant] in obtaining knowledge of the decision is less important than the interest of society at large. The purpose of the data processing and publication could not have been achieved in a manner less damaging to [the applicant]. The decision was rendered anonymous and published in accordance with the anonymisation guidelines applicable to publication on rechtspraak.nl. It cannot be said that the District Court of The Hague should have gone further than that directive requires. As the State has argued, the data included in the recital are necessary for answering the legal question of whether [the applicant] is a public figure and therefore has more tolerance than the average citizen with regard to an infringement of its right to privacy. In addition, [the applicant] stated at the oral hearing that so far no one has been able to trace the decision back to her. The conclusion is therefore that the requirements of proportionality and subsidiarity have been met. There is no longer any need for an assessment of the parties' other points of view.
4.14.

The above means that the requests will be rejected.
4.15.

4.15. With reference to the decision of the Court of Appeal of Den Bosch of 1 February 2018 (ECLI:NL:GHSHE:2018:363), [the applicant] took the view that an order as to costs was contrary to European law. In this judgment, the Court (in summary) refrained from ordering the applicant to pay the costs of proceedings if he exercised his rights under the Wbp (Old Data Protection Act) and the Personal Data Protection Directive because, in view of the extent of those costs, that was considered to be an obstacle and therefore contrary to Article 47 of the Charter of Fundamental Rights of the European Union ('the Charter'). Article 47 of the Charter provides that everyone whose rights and freedoms guaranteed by Union law have been violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that Article.
4.16.

In the opinion of the court or tribunal, the possibility of obtaining an order to pay costs in the context of an application under the AVG does not in itself constitute an obstacle to the right to an effective remedy guaranteed by Article 47 of the Charter. In so far as such an obstacle may already be found to exist, the judgment of the CJEU of 27 September 2017 (C-73/16, ECLI:EU:C:2017:725) is relevant, considering, inter alia, that, although Member States are, in principle, free to determine appropriate compensation for bringing an action before an administrative authority, that compensation must not be at a level which is liable to obstruct the exercise of the right to an effective remedy guaranteed by Article 47 of the Charter. In that case, the system of flat-rate costs of proceedings provides for appropriate compensation and does not entail excessively high costs. As a result, there is no reason to dispense with an order to pay costs under Article 47 of the Charter.
4.17.

In the light of the foregoing, [the applicant] shall be ordered to pay the costs. The costs on the part of the State are estimated to date:

- court registry fee € 639

- lawyer's salary € 1,086 (2 points × rate € 543)

total € 1,725
5 The decision

The court
5.1.

Reject the requests,
5.2.

orders [the applicant] to pay the costs of the proceedings, assessed to date by the State at EUR 1 725,
5.3.

declares the order for costs enforceable on a provisional basis.

This order was issued by M.C.H. Broesterhuizen and pronounced in public on 2 April 2020.

</pre>