View source for Rb. Gelderland - C/05/404834 / HA ZA 22-245

{{COURTdecisionBOX

|Jurisdiction=Netherlands
|Court-BG-Color=
|Courtlogo=Courts_logo1.png
|Court_Abbrevation=Rb. Gelderland
|Court_Original_Name=Rechtbank Gelderland
|Court_English_Name=District Court Gelderland
|Court_With_Country=Rb. Gelderland (Netherlands)

|Case_Number_Name=C/05/404834 / HA ZA 22-245
|ECLI=ECLI:NL:RBGEL:2022:5942

|Original_Source_Name_1=rechtspraak.nl
|Original_Source_Link_1=https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBGEL:2022:5942&showbutton=true&keyword=AVG
|Original_Source_Language_1=Dutch
|Original_Source_Language__Code_1=NL
|Original_Source_Name_2=
|Original_Source_Link_2=
|Original_Source_Language_2=
|Original_Source_Language__Code_2=

|Date_Decided=26.10.2022
|Date_Published=02.11.2022
|Year=2022

|GDPR_Article_1=Article 15(3) GDPR
|GDPR_Article_Link_1=Article 15 GDPR#3
|GDPR_Article_2=
|GDPR_Article_Link_2=
|GDPR_Article_3=
|GDPR_Article_Link_3=

|EU_Law_Name_1=
|EU_Law_Link_1=
|EU_Law_Name_2=
|EU_Law_Link_2=

|National_Law_Name_1=
|National_Law_Link_1=
|National_Law_Name_2=
|National_Law_Link_2=

|Party_Name_1=
|Party_Link_1=
|Party_Name_2=
|Party_Link_2=

|Appeal_From_Body=
|Appeal_From_Case_Number_Name=
|Appeal_From_Status=
|Appeal_From_Link=
|Appeal_To_Body=
|Appeal_To_Case_Number_Name=
|Appeal_To_Status=
|Appeal_To_Link=

|Initial_Contributor=n.pehch
|
}}

The District Court of Gelderland rejected a data subject's claim to access Zoom call recordings on the basis of [[Article 15 GDPR|Article 15 GDPR]] to substantiate their defence in court. The Court held that the data subject did not sufficiently substantiate their claim.

== English Summary ==

=== Facts ===
The controller advises and guides companies on matters such as brand positioning, corporate identity, business models and revenue models. The data subject had a business that facilitates spaces for retreats, trainings and workshops. The controller believed that the data subject wrongfully failed to pay its invoice, and it claimed payment of the invoice, among other things. The data subject disputed this and refused to pay the additional invoices. Therefore, the controller took the matter to court.

To substantiate their defence, the data subject requested the Court to order the controller to provide digital copies of all recordings it made of conversations and (Zoom) video conferences between them, pursuant to article 843a of the Code of Civil Procedure (CCP) and/or [[Article 15 GDPR]]. The data subject stated that during the Zoom-calls, they were notified by an on-screen notification at the beginning of the call that it would be recorded.

=== Holding ===
Concerning the data subject's claim under [[Article 15 GDPR]], the Court noted that the controller stated, with reasons, that a significant portion of the requested recordings could not be provided, because they did not exist. The Court held that it was the data subject's responsibility to assert and provide evidence that the controller actually had these recordings available. The data subject, however, did not provide such evidence. The Court deemed it not plausible that the controller had more recordings at its disposal than it claimed to have, and rejected the claim under [[Article 15 GDPR]] on this point.

Regarding the residual recordings, the Court pointed out that [[Article 15 GDPR#3|Article 15(3) GDPR]] gives the data subject the right to be provided with a copy of the personal data being processed. The Court followed that this right does not automatically entitle a data subject to access a copy or transcript of the original document on which their data is recorded. For example, a data subject is not entitled to the latter, in so far as the objective pursued by that right of access can be fully satisfied by another form of provision (CJEU 17 July 2014, [https://curia.europa.eu/juris/document/document.jsf;jsessionid=631861F6D8464B82ECD05BDA33A08736?text=&docid=155114&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=1904724 ECLI:EU:C:2014:2081]).

The Court recalled that, in its defence against the counterclaim, the controller stated that if the data subject wanted to know if and what personal information it stored relating to them, they could have sent an access request to the controller. The Court came to the conclusion that the data subject did not request such access to their data prior to their claim. Moreover, the data subjects did not substantiate that they were not able to check whether their personal data was correct and lawfully processed by relying on the rules in [[Article 15 GDPR]]. In addition, the court concluded that the data subject did not clarify their intent to safeguard the rights of others whose personal data was also processed in the conversation. Hence, the controller could not provide the data subjects access to the full Zoom conversations. In other words, the Court held that the GDPR does not oblige the controller to provide the defendants with access to the records to the extent claimed by the data subjects. The Court thus also rejected this claim. 

Therefore, The Court denied the data subjects’ claim based on [[Article 15 GDPR#3|Article 15(3)]] for the access to the Zoom-call recordings. The Court did grant the data subject's claim under article 843a CCP for two Zoom calls.

== Comment ==
''Share your comments here!''

== Further Resources ==

* [https://www.recht.nl/exit.html?id=427043&url=https%3A%2F%2Floud-juridischadvies.nl%2Fopdrachtnemer-hoeft-niet-alle-zoom-gesprekken-vrij-te-geven%2F A contractor does not have to release all Zoom calls] (Loud-juridischadvies.nl)
* [https://www.recht.nl/exit.html?id=427167&url=https%3A%2F%2Fwww.boek9.nl%2Fitems%2Fiept20221026-rb-gelderland-font-en-logo-ontwerpen Release of recording Zoom calls for defence against alleged copyright infringement of font and logo] (Boek9.nl)
* [https://www.itenrecht.nl/artikelen/eiseres-moet-digitale-kopieen-zoom-gesprekken-verstrekken Claimant must provide digital copies of Zoom calls] (ITenRecht.nl)

== 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>
verdict
GELDERLAND COURT
Canton and commercial law team
Seating location Arnhem
case number / roll number: C/05/404834 / HA ZA 22-245 / 754 / 1700
Judgment in incident of October 26, 2022
in the case of
the private company with limited liability
[plaintiff].,
established in [establishment 1] ,
plaintiff in the main action,
defendant in the incident,
lawyer mr. J. Anema in Amersfoort,
against
1 [defendant 1] , trading under the name [company defendant 1] ,
residing and having an office at [residence] ,
2. the private company with limited liability
[defendant 2] ,
established in [establishment 2] ,
defendants in the main action,
plaintiffs in the incident,
lawyer R. Klöters in Amsterdam.
The parties will hereinafter be referred to as [claimant] on the one hand and [defendant 1] and [defendant 2] on the other. are called.
1 The procedure
1.1.
The course of the procedure is apparent from:
the subpoena,
the incidental claim of the requirement to provide a copy of documents pursuant to art. 843a yo. 22 Rf,
the statement of response in the incident pursuant to art. 843a yo. 22 Rf.
1.2.
Finally, verdict is determined in the incident.
2 The facts and the main dispute
2.1.
[plaintiff] advises and assists companies in areas such as brand positioning, corporate identity, house style, business models and revenue models.
2.2.
[defendant 1] has a sole proprietorship ([company defendant 1]) and facilitates, among other things, spaces for retreats, training courses and workshops. On September 2, 2021, [defendant 2]. established, with [defendant 1] as sole shareholder and director.
2.3.
The [administrator] (hereinafter: [administrator] ) is the manager of the estate [name of estate]. [defendant 2] . has entered into an agreement with [administrator] for the exploitation of the estate.
2.4.
From the end of 2021, [claimant] has performed work for [defendant 1] and/or [defendant 2]. [plaintiff] has received payments in this context totaling approximately € 35,000.00.
2.5.
According to [plaintiff], [defendant 1] and [defendant 2] refuse. wrongly pay (the rest of) its invoices. To this end, [plaintiff] states the following. It applies primarily that it has a contract with [defendant 1] and alternatively that it has a contract with [defendant 2]. [plaintiff] has largely performed and delivered the agreed work. Only the finalization of concepts in the context of the Brand Identity and the completion of work with regard to the definitive logo, pitch deck, activation campaign and the market research have not yet been performed and/or delivered, but the cause lies with [defendant 1] and [defendant 2] .. They have not enabled [claimant] to fulfill these obligations and are therefore in default of creditors. [defendant 1] and [defendant 2]. have therefore not validly dissolved the contracts for services and have not validly suspended their payment obligation. [Buyer] therefore claims compliance with the payment obligation arising from the contracts for services. In addition, [plaintiff] claims payment of € 63,947.50 in damages. To this end, [plaintiff] argues that [defendant 1] and [defendant 2] . imputably failed in the fulfillment of the contracts for services. According to [plaintiff] she suffers as a result of the actions of [defendant 1] and [defendant 2]. damage, consisting of lost profit and hours of availability of its employees. [defendant 1] and [defendant 2]. must compensate for this damage, according to [plaintiff]. Finally, [claimant] claims payment of the contractual penalty of € 28,500.00 due to a copyright infringement and an injunction against [defendant 1] and [defendant 2]. makes public or makes available to the public the font and logo designs that [plaintiff] has made.
2.6.
[plaintiff] claims in the main proceedings, summarized and insofar as relevant in this incident, that the District Court by judgment, provisionally enforceable:
[defendant 1] and [defendant 2]. is jointly and severally ordered to pay € 14,217.50 in outstanding invoices, plus the statutory interest,
[defendant 1] and [defendant 2]. is jointly and severally ordered to pay € 1,422.00 in extrajudicial costs,
releases [claimant] from its obligations towards [defendant 1] or at least [defendant 2] with regard to making concepts final in the context of the Brand Identity and completing work with regard to the definitive logo, pitch deck, activation campaign and market research,
[defendant 1] and [defendant 2]. is jointly and severally liable to pay € 63,947.50 in compensation, plus the statutory interest,
[defendant 1] and [defendant 2]. prohibits the publication and making available to the public of the font and logo designs that [plaintiff] has produced, on pain of a penalty,
[defendant 1] and [defendant 2]. is jointly and severally ordered to pay € 28,500.00 in respect of unauthorized infringements of the copyright of [plaintiff], to be increased by the statutory interest,
[defendant 1] and [defendant 2]. jointly and severally liable for the costs of the proceedings.
2.7.
[defendant 1] and [defendant 2]. have not yet reached an answer in the main proceedings.
3 The dispute in the incident
3.1.
In this incident, [defendant 1] and [defendant 2] claim . summarized that the court on the basis of article 843a jo. 22 Rv by judgment, provisionally enforceable:
Orders [claimant] to provide digital copies of all recordings that she made of conversations and (Zoom) video conferences between [claimant] on the one hand and [defendant 1] and [defendant 2] within 3 days after the judgment in the incident was served. and/or [administrator] on the other hand, and alternatively all recordings it has made of the conversations and video conferences referred to in sub 24 a) to q),
[plaintiff] orders [defendant 1] and [defendant 2]. to pay a penalty of € 2,500.00 each time and subsequently for each day that she does not comply with the conviction under 1,
[plaintiff] orders the court and subsequent costs of the incident.
3.2.
In support of their claim, [defendant 1] and [defendant 2] ., briefly summarized, submit the following. [defendant 1] and [defendant 2]. its intention to defend itself in their statement of defense in the main action. The claim against [defendant 1] must be dismissed because she is not a party to the agreements. The claim against [defendant 2]. must be dismissed because, the court understands, [defendant 2] . has suspended the fulfillment of its payment obligation and the agreement has been dissolved or terminated. After all, [plaintiff] did not behave as a good contractor pursuant to art. 7:401 ff BW. Moreover, [plaintiff] has failed to fulfill its obligations under the agreements by not performing the agreed work and not delivering the products. A few sessions have taken place and some things have been presented, but [plaintiff] never made the agreed products available, despite repeated requests. [defendant 2] . has therefore never actually been able to use it. That gave [defendant 2]. the authority to suspend its payment obligation. [claimant] has entered into (creditors) default and the agreement was dissolved extrajudicially or terminated on February 14, 2022. [defendant 1] and [defendant 2] . will therefore also file a counterclaim in the main action for the cancellation of the performances it has performed, more in particular the payments already made, or for the payment of compensation on the basis of unjust enrichment. The claims of [claimant] with regard to the alleged copyright infringement must be rejected because there were never copyrighted works on [defendant 1] and [defendant 2]. have been shown or made available. The font and logo used by [defendant 1] and [defendant 2]. currently use, was designed by a third party and deviates from the font and logo designed by [plaintiff].
3.3.
It is to be expected that [plaintiff] will dispute the aforementioned facts, which are potentially decisive for the case, in her statement of defense in the counterclaim. [defendant 1] and [defendant 2]. therefore have the right and interest in all recordings of all video conferences and telephone conversations between the parties, at least recordings of the conversations and video conferences referred to in sub 24 a) to q) of the incidental claim. She needs these recordings to prove that there is an attributable shortcoming or unlawful conduct on the part of [plaintiff], which agreements have been made about the identity/capacity of the parties involved in the agreements, the content of the cooperation between the parties and the by [defendant 1] and [defendant 2]. products required from [plaintiff]. [Defendant 1] and [Defendant 2] also have . these recordings are necessary to defend itself against the claims of [claimant] with regard to the alleged copyright infringement by [defendant 1] and [defendant 2]. was included. [defendant 1] and [defendant 2]. demand the provision of these recordings on the basis of Article 843a DCCP and/or Article 15 GDPR.
3.4.
[plaintiff] puts forward a reasoned defence, as will be discussed in more detail below, and concludes that the claim in the incident should be rejected.
3.5.
In so far as relevant, the arguments of the parties are discussed in more detail below.
4 The assessment in the incident
4.1.
The court will accept the claim for the provision of audio recordings of the conversations between [claimant] and [defendant 1] and [defendant 2]. on the basis of article 843a DCCP, with the exception of the recordings of the two Zoom calls referred to under 24 c) and p) of the incidental claim. The rest of the incidental claim does not meet the requirements of the law, as will be explained below.
The legal requirements
4.2.
Article 843a DCCP links the admissibility of a claim for access to or copies of documents to four cumulative conditions:
the party filing the claim must have a legitimate interest in doing so;
it must concern certain documents;
those documents must relate to a legal relationship to which the claimant is a party;
the other party must dispose of the documents.
4.3.
In the event of a dispute by the holder of the documents, it is up to the applicant, in this case [defendant 1] and [defendant 2], to motivate and, if necessary, prove that these (cumulative) conditions have been met.
4.4.
These conditions serve to prevent so-called 'fishing expeditions'. Article 843a DCCP does not offer the option of requesting documents of which a party only suspects the existence or which he suspects could support his propositions in the main action.
4.5.
Even if the conditions referred to in Article 843a DCCP are met, the claim must still be rejected according to the fourth paragraph of this provision if there are serious reasons for doing so or if due process is also guaranteed without providing the requested information.
Ad 2. Certain documents
4.6.
[plaintiff] opposes the release of the conversation recordings and states first of all that the condition that it must be 'certain documents' has not been met.
4.7.
The court, together with [claimant], is of the opinion that the primary claim does not meet the determinability requirement. [defendant 1] and [defendant 2]. primarily demand production of all recordings made by [plaintiff] of all conversations and Zoom calls between [plaintiff] on the one hand and [defendant 1] and [defendant 2]. and/or [administrator] on the other hand. There is no restriction whatsoever, for example to recordings of telephone conversations only or only Zoom calls or recordings of a certain date and with a certain subject. In this way, in the opinion of the court, the documents are too general and too little specified to qualify as specific documents. This means that [defendant 1] and [defendant 2] . are not entitled to the issue of the primarily advanced recordings.
Ad 4. At his disposal
4.8.
[plaintiff] argues that [defendant 1] and [defendant 2]. are also not entitled to the submission of the alternatively claimed recordings, namely the telephone conversations and Zoom calls referred to in sub 24 a) to q). In this regard, she first of all argues that the recordings are not present. According to [plaintiff] she only made recordings of the Zoom calls under c), k), o) and p). Other Zoom calls are not included. Telephone conversations between the parties were also not recorded, according to [plaintiff].
4.9.
The court considers that, in view of the dispute of [claimant], it is up to [defendant 1] and [defendant 2]. to establish and make plausible that the requested recordings exist. They didn't. [defendant 1] and [defendant 2]. state that during all Zoom calls a notification appeared at the start that the call in question was being recorded, but that statement is in no way substantiated. There is also no indication that [plaintiff] recorded the telephone conversations. The circumstance that [plaintiff] disputes for the first time in her interlocutory statement of defense that the recordings exist is different from [defendant 1] and [defendant 2]. asserting – insufficient to be able to assume that the recordings exist. This means that the (subsidiary) claim for delivery of the recordings of the telephone conversations and Zoom calls referred to under sub 24 a), b), d) to j), l), m), n) and q) of the incidental claim to exhibit, will be rejected.
4.10.
The court will therefore assess below whether [defendant 1] and [defendant 2] . are entitled to surrender of the remaining (alternatively) claimed withdrawals. This concerns recordings of the following four Zoom calls, mentioned under sub 24 of the incidental conclusion:
What
When
Content
c)
1 Zoom call
September 14, 2021
introductory session in which the Pitchdecks were discussed
k)
1 or 2 Zoom calls (this consultation may consist of two parts)
October 8, 2021
weekly team meeting
O)
1 Zoom call
October 20, 2021
settlement call
p)
1 Zoom call
December 7, 2021
presentation of corporate identity and logos
Ad 1. Legitimate interest
4.11.
[plaintiff] argues that [defendant 1] and [defendant 2]. are not entitled to issue the aforementioned recordings, because they have no legitimate interest in doing so. According to [plaintiff], [defendant 1] and [defendant 2]. no interest in issuing these recordings, because they do not need them for the main purpose. After all, according to [plaintiff], the exhibits submitted by her in the summons already show what emerged in the discussions, what exactly the parties have agreed and what work has been performed.
4.12.
The court cannot (fully) follow this position and is of the opinion that [defendant 1] and [defendant 2] . have a legitimate interest in the submission of the (alternatively) claimed admissions under sub 24 c) and p) of the incidental claim, as will be explained below.
Sub 24 c): Zoom call of September 14, 2021
4.13.
[defendant 1] and [defendant 2]. state that they need the recording mentioned under sub 24 c) in order to prove, briefly summarized:
that [defendant 1] is not a party to the agreements with [plaintiff];
that [claimant] has not concluded a separate agreement with [administrator] with regard to the Business Plan and the Market Research. According to [defendant 1] and [defendant 2]. Although an offer was made in the name of [administrator] and also paid by [administrator], all activities and products form part of the agreement between [claimant] and [defendant 1] and [defendant 2]. [plaintiff] should therefore also have delivered these products to her, according to [defendant 1] and [defendant 2].;
[defendant 1] and [defendant 2]. are not obliged to pay four subscription terms;
that the parties have not discussed (follow-up) assignments from the start of the cooperation in such a way that [claimant] can base a claim for compensation on this if they fail to do so;
that [defendant 1] and [defendant 2] . never wanted to take two pitch decks, but only one;
that no pitch deck was ever delivered, at least not through the September 14, 2021 sessions.
4.14.
According to [defendant 1] and [defendant 2]. the foregoing was discussed orally around the conclusion of the agreement of September 15, 2021, including during the Zoom call of September 14, 2021, and they therefore have an interest in issuing this recording.
4.15.
[claimant] disputes that [defendant 1] and [defendant 2]. have an interest in issuing this recording and argue that the exact purport of the contract between the parties already follows from exhibits 3 and 4 (offer dated 27 July 2021 with explanation), exhibit 5 (adjusted tender dated 10 September 2021), exhibit 6 ( e-mail with explanation and planning of the work) and Exhibit 14 (presentation pitch deck) with summons.
4.16.
The court rejects this defense on the basis of the following. There is no legitimate interest if the relevance of the requested documents with regard to the fact on which a possible claim or defense is based is insufficiently clear and concretely stated and substantiated. The court is of the opinion that [defendant 1] and [defendant 2] . have stated and substantiated sufficiently clearly and specifically why they believe that this recording may be important as evidence in the main action and for the defense to be presented or the counterclaim to be instituted (subsections 4.13 and 4.14). Moreover, it is apparent from the exhibits submitted by [claimant] that [defendant 1] is stated on the offers, but precisely not that – such as [defendant 1] and [defendant 2] . argue – it has been discussed that [defendant 2] . is a contracting party. Those exhibits also show nothing about the capacity of [administrator] and whether she (in addition to [defendant 1] and/or [defendant 2] .) is a contracting party of [claimant]. For this reason alone, [defendant 1] and [defendant 2] have . interest in issuing the recording under sub 24 c). In addition, [defendant 1] and [defendant 2] have . interest in issuing this recording because they dispute that a pitch deck was ever delivered and the productions to which [claimant] refers do not provide sufficient clarity about this. After all, it follows from [claimant]'s exhibit 6 that the parties have discussed a pitch deck, but not that this has been completed. Exhibit 14 are slides called 'pitchdeck [company defendant 1]'. That these slides to [defendant 1] and [defendant 2] during the session on September 14, 2021. presented, does not appear and is by [defendant 1] and [defendant 2]. disputed. The advanced recording can be used to verify the correctness of these positions and thus the legal position of [defendant 1] and [defendant 2]. to establish.
Sub 24 p): Zoom call from December 7, 2021
4.17.
[defendant 1] and [defendant 2]. state that they need the recording of the Zoom call under sub 24 p) in order to be able to put forward a sound defense against the alleged copyright infringement. They argue that they need this recording to substantiate that there were never copyrighted works on [defendant 1] and [defendant 2] . have been shown or made available. According to [defendant 1] and [defendant 2] there are . Although designs were shown on December 7 and 10, 2021, only to [name] (who was present at those sessions on behalf of [defendant 1] and [defendant 2]) and those designs, despite repeated requests, were never to [defendant 1] and [defendant 2] . sent. [defendant 1] and [defendant 2]. saw the designs for the first time in the productions of [claimant] , according to [defendant 1] and [defendant 2]. Moreover, the font and logo are those of [defendant 1] and [defendant 2]. currently used, designed by a third party and they deviate from the font and logo designed by [plaintiff].
4.18.
According to [plaintiff], [defendant 1] and [defendant 2]. no interest in issuing these recordings, because exhibits 23, 24 and 25 in the summons (emails of December 13, 2021 and January 5, 2022) already show what was discussed in the relevant Zoom call.
4.19.
The court also disregards this defense, in view of the following. It is not clear from the interview reports of [claimant] (exhibits 23, 24 and 25 in the summons) which font and logo were presented on 7 and 10 December 2021, while [defendant 1] and [defendant 2] . argue that the presented font and logo differ from the font and logo used by [defendant 1] and [defendant 2]. currently using. That the recording of the Zoom call of December 7, 2021 can be used to verify the correctness of this position and thus the legal position of [defendant 1] and [defendant 2]. is evident in the opinion of the court. The fact that no audio is available from the call in question does not change this. After all, it mainly concerns the presented logos, the images are sufficient for that. This means that [defendant 1] and [defendant 2] . have a direct and concrete – and therefore legitimate – interest in issuing this call recording.
Sub 24 k) and o): Zoom calls from October 8 and 20, 2021
4.20.
[defendant 1] and [defendant 2]. argue that they need the recordings of the Zoom calls under 24 k) and o) in order to be able to put forward a sound defense against [plaintiff]'s claim for compensation, consisting of, among other things, lost turnover for the Investorsday and the website. More concretely, they need these recordings to substantiate, in short:
that [defendant 1] and [defendant 2] . there was no need for [plaintiff] to have the Investorsday carried out at a later date and that they made this known to [plaintiff];
what the further arrangements between the parties were with regard to the Investorsday;
that no agreement has been reached with regard to the website (sub 38 incidental claim);
that the parties have not discussed (follow-up) assignments from the start of the cooperation in such a way that [claimant] can base a claim for compensation on this in the absence of such (sub 37 interlocutory claim).
4.21.
According to [plaintiff], [defendant 1] and [defendant 2]. no interest in issuing the recording of the Zoom calls on October 8 and 20, 2021, because the productions in the summons record what was discussed during these calls. With regard to the Zoom call on October 20, 2021, [plaintiff] refers specifically to exhibit 31 in the summons (email of October 20, 2021).
4.22.
The court can accept the position of [defendant 1] and [defendant 2]. and is of the opinion that they have no legitimate interest in the recording of the Zoom calls of October 8 and 20, 2021. It considers this as follows.
4.23.
The court states first and foremost that [defendant 1] and [defendant 2] . have provided insufficient reasons that during the Zoom calls of October 8 and 20, 2021, topics that are relevant to the positions of [defendant 1] and [defendant 2] were discussed. in the main. It is not in dispute that [defendant 1] and [defendant 2]. the Investorsday and the website did not want to take any more at some point. That is also the reason that [plaintiff] claims those amounts offered on the basis of compensation. Nor is it in dispute that the offer for the website was not (yet) accepted (sub 50 summons). However, [plaintiff] argues that an agreement had still been concluded, and refers to its general terms and conditions and the fact that the website had already gone online. It has not been stated or proven that - and why the Zoom calls of 8 and 20 October 2021 can provide clarity about this.
4.24.
In addition, Exhibit 31 submitted with the summons shows what was discussed in the Zoom call of 20 October 2021. The fact that these are summaries on the part of [plaintiff] does not alter this. The contention of [defendant 1] and [defendant 2] . The fact that they were not always able to respond to the (often long) e-mails from [plaintiff] cannot be followed and is moreover at its own expense and risk. In addition, [defendant 1] and [defendant 2] . have actually responded to the e-mail from [claimant] of 20 October 2021. [defendant 1] and [defendant 2]. have brought this response into the proceedings as Exhibit 6 to the cross-examination claim. In it [defendant 1] and [defendant 2] have . responded point by point, including with regard to Investorsday and the website:
“That the event costs have been charged so far and I will not charge you any further costs of the event. (attached credit note, as well as remaining invoice)
I just paid the remaining invoice for the investor day. That concludes that part for me now.
The other agreed costs for work that have been agreed will remain unaffected. It is up to you whether we implement this or whether you only fulfill the agreement.
This work, again, I do not want you to carry out any further.
[…]
You are free not to use the services that have been purchased, agreed and purchased from us. We'd be more than annoyed if that's the decision you're coming to. Nevertheless, the obligations of the agreement that we have with each other remain unaffected. The following services are available: Pitchdeck € 1850
Activation campaign € 3750
Website (adjusted rate) € 4400 […]
Activities have already been started for the website in connection with the investors day (design landing page), for that reason these costs are therefore not quoted under the investors day but fall under the already agreed website. You indicated earlier that this was not agreed to. In addition to the activities started, the planning of the launch website has been discussed several times, and a loan proposal has been made for these costs. With all that mentioned above, this assignment falls under article 4.1 of our general terms and conditions.
I have not received an order for a website and certainly NOT approved. I will come back to this with the lawyer.”
Conclusion
4.25.
In view of the foregoing, it is concluded that [defendant 1] and [defendant 2] . have sufficiently demonstrated the legitimate interest in issuing the (alternatively) claimed admissions under sub 24 c) and p). It is not in dispute that the other three conditions of Article 843a DCCP have been met. No serious reasons for the rejection of the claim to provide the recordings under sub 24 c) and p) have been made and have not been submitted. Finally, there is also no question of a situation in which due process is also guaranteed without providing the requested information. The claim pursuant to Article 843a DCCP will therefore be awarded with regard to the recordings under 24 c) and p). The rest of the claim will be dismissed.
Article 15 GDPR
4.26.
[defendant 1] and [defendant 2]. also based their request on Article 15 paragraph 3 GDPR.
4.27.
[claimant] has argued with reasons that the claimed recordings under 24 a), b), d) to j), l), m), n) and q) cannot be provided because they do not exist. It lies in the way of [defendant 1] and [defendant 2] . to establish and demonstrate that [claimant] does have these recordings available and/or that and which (other) recordings [claimant] should have available. [defendant 1] and [defendant 2]. have left that. This means that it is not plausible that [claimant] has more than recordings under c), k), o) and p) and that the claim pursuant to Article 15 of the GDPR will already be rejected on this point.
4.28.
Because the claim to provide the recordings under c) and p) can already be granted on the basis of Article 843a DCCP, Article 15 of the GDPR cannot be discussed as a basis.
4.29.
With regard to the claim to issue a copy of the recordings referred to under k) and o), the court considers as follows. The purpose of the right of access is to enable the data subject to take cognizance of the personal data collected about him and to check whether these data are correct and have been recorded lawfully. Article 15 paragraph 3 GDPR entitles you to a copy of the personal data being processed. The right of access does not mean that the data subject has the right to inspect or copies of the documents or files as such if they contain personal data. A data subject is not entitled to a copy or copy of the original document on which his data is recorded, insofar as the objective pursued with that right of access can be fully met by another form of disclosure (ECJ 17 July 2014, ECLI:EU :C:2014:2081).
4.30.
According to [plaintiff], [defendant 1] and [defendant 2]. address a request for access to it if they want to know whether, and if so which, personal data of them have been stored by [plaintiff] (sub 21, incidental statement of reply). It has not been argued or proven that [defendant 1] and [defendant 2] . have addressed such a request for access to [plaintiff] prior to their cross-appeal. [defendant 1] and [defendant 2]. have also not argued and substantiated that in this way they are not able to check whether their personal data are correct and have been processed lawfully. For that reason alone, the claim on this point must be dismissed. In addition, it is unclear how [defendant 1] and [defendant 2]. believe to safeguard the rights of others whose personal data appears in the conversations. This also means that [plaintiff] cannot be ordered to disclose the content of the complete conversations with [defendant 1] and [defendant 2]. to the extent that [defendant 1] and [defendant 2] are not required by the GDPR to inspect and issue documents. progress. After all, only the data concerning [defendant 1] of her name, e-mail address, telephone number, bank details, etc. that are displayed in the conversations are "personal data" within the meaning of the AVG and not the complete recordings.
penalty payment
4.31.
The requested penalty payment is granted because no defense has been lodged against it. However, the penalty will be maximized as stated below in the decision.
Process costs
4.32.
[defendant 1] and [defendant 2]. If the (largely) unsuccessful party will be ordered to pay the costs of the incident. The costs on the part of [plaintiff] are estimated at € 1,770.00 (1 point x rate € 1,770.00) in lawyer's salary.
5 The decision
The court
in the incident
5.1.
orders [plaintiff] to provide a digital copy of the recordings she made of the Zoom calls as referred to under sub 24 c) and p) of the interlocutory claim to exhibit within three days of service of this judgment,
5.2.
orders [plaintiff] to pay to [defendant 1] and [defendant 2]. to pay a penalty of € 2,500.00 each time and subsequently for each day that she does not comply with the conviction under 5.1, until a maximum of € 50,000.00 has been reached,
5.3.
convicts [defendant 1] and [defendant 2]. in the costs of the incident, on the part of [plaintiff] estimated to date at € 1,770.00,
5.4.
declares this judgment provisionally enforceable so far,
5.5.
rejects the more or otherwise advanced,
in the main
5.6.
determines that the case will be returned to the roll on Wednesday, December 7, 2022 for statement of defense by [defendant 1] and [defendant 2].,
5.7.
reserves any further decision.
This judgment was rendered by mr. M.S.T. Called and pronounced in public on October 26, 2022.
</pre>