View source for Rb. Midden-Nederland - C/16/481957/KG ZA 19-357

{{COURTdecisionBOX

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

|Case_Number_Name=C/16/481957/KG ZA 19-357
|ECLI=ECLI:NL:RBMNE:2019:4954

|Original_Source_Name_1=de Rechtspraak
|Original_Source_Link_1=https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBMNE:2019:4954&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=25.10.2019
|Date_Published=01.11.2019
|Year=2019

|GDPR_Article_1=Article 33 GDPR
|GDPR_Article_Link_1=Article 33 GDPR
|GDPR_Article_2=Article 35 GDPR
|GDPR_Article_Link_2=Article 35 GDPR
|GDPR_Article_3=Article 36 GDPR
|GDPR_Article_Link_3=Article 36 GDPR

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|EU_Law_Link_2=

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

|Party_Name_1=Public Prosecutor's Office of the Netherlands
|Party_Link_1=https://www.om.nl/organisatie/
|Party_Name_2=Foundation of Victims of Iatrogenic Negligence of the Netherlands
|Party_Link_2=https://www.sin-nl.org/
|Party_Name_3=
|Party_Link_3=
|Party_Name_4=
|Party_Link_4=

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The Court of First Instance of the Central Netherlands ruled on the portrait rights and the GDPR. 

==English Summary==

===Facts=== 
SIN-NL is a foundation that works to improve the position of victims of medical errors or their survivors and the patient safety and quality of healthcare. SIN-NL publishes online a blacklist of doctors and a blacklist of judges, which contain names of doctors, judges and other persons and organisations within the healthcare sector who according to SIN-NL act unlawfully. 

The plaintiff was a public prosecutor, that acted in cases of medical malpractice. The plaintiff's name and photo were included in an article in the list of the doctors and specific accusations against here were made. The name of the plaintiff's name and job were also mentioned there. 

The Public Prosecutor's Office claimed that the inclusion of the names and the photo violated the GDPR and the plaintiff's portrait right, hence they should be removed.

===Dispute=== 
The Court had to balance the interests of the opposing parties. 

===Holding===
The Court found that the allegations against the plaintiff were inaccurate. Moreover, the photo was published without the plaintiff's consent and thus it violated her portrait right. The paintiff also saw a violation of Articles 33, 35 and 36 of the GDPR, which the defendant has not contested. The Court found that the publication of the blacklists violated Dutch law and ordered the removal of the article at stake. It also ordered the defendants to submit a request for removal to Google.

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==English Machine Translation of the Decision==

The decision below is a machine translation of the original. Please refer to the Dutch original for more details.

<pre>DECISION

COURT OF THE MIDDLE THE NETHERLANDS

Civil Justice
trading room
location Utrecht
Case number / role number: C/16/481957 / KG ZA 19-357
Judgment in interlocutory proceedings of 25 October 2019
in the case of
1. the legal person governed by public law
THE STATEMENT OF THE NETHERLANDS (Public Prosecutor's Office),
based in The Hague,
2. [plaintiff sub 2],
residing at [domicile] ,
plaintiffs,
lawyer J.S. Bierens in The Hague,
at the rate of
1 [defendant sub 1] ,
residing at [domicile] ,
2. the foundation
FOUNDATION VICTIMS IATROGENIC NEGLIGENCE-THE NETHERLANDS,
established in Utrecht,
defendants,
attorney Mr. R.L. de Graaff in Amsterdam.
Plaintiffs are hereinafter referred to separately as the Public Prosecution Service and [plaintiff sub 2] and jointly as the Public Prosecution Service. Defendants are hereinafter referred to separately [defendant sub 1] and SIN-NL and jointly [defendants c.s.].

1 The procedure
1.1.
The course of the procedure is clear:

-the writ of summons of 11 June 2019 with production 1 to 15 inclusive

-production received from the Public Prosecutor's Office on 17 July 2019 16

-the oral hearing of 18 July 2019, at which the substantive proceedings were adjourned on health grounds of [defendant sub 1]

-productions 1 to 6, received from [defendants and related parties] on 18 September

-productions received from [defendants et al.] on 18 September from 7 to 14 inclusive

-the oral procedure of 11 October 2019

-the pleading note from the DA's office c.s.

-Mr. de Graaff's pleading note

-the pleading note of [defendant sub 1] 

1.2.
It was then decided that there would be a verdict.

2 What is the case about?
2.1.
SIN-NL is a foundation that works to improve the position of victims of medical errors or their survivors and the patient safety and quality of healthcare. Defendant sub 1] is chairman of SIN-NL.

2.2.
SIN-NL publishes on the internet a "black list of doctors" and a "black list of judges". These blacklists contain names of doctors, judges and other persons and organisations within the healthcare sector and the government that according to SIN-NL act in a disciplinary, criminal or otherwise culpable manner. The blacklist of doctors can be reached via www.zwartelijstartsen.com, www.zwartelijstartsen.nl and www.sin-nl.org. The blacklist of judges can be found at www.zwartelijstrechters.org. These domain names are registered in the name of SIN-NL.

2.3.
Mrs. [A] (hereafter: [A] ) acted as a public prosecutor in a criminal case in which [defendant sub 1] was prosecuted for libel, slander and/or insult of a neurologist. In that criminal case [defendant sub 1] requested postponement of the hearing several times. The third time she did this by means of two doctor's certificates. The statements were from two different doctors, but had the same content. That is why [A] has contacted (at least) one of these doctors. That doctor informed her that according to him [defendant sub 1] would be able to attend a hearing, if that hearing would be in the afternoon and would not last too long. A] reported this to the court. The court then decided to allow the case to go ahead without [defendant sub 1] and without her lawyer, who had not come either. defendant sub 1] has been convicted.

2.4.
On the blacklist of doctors is an article about [A] . This article also mentions the name of her husband ( [plaintiff sub 2] ), his employer and position. On the blacklist of judges, the name of [A] is mentioned in four reports about four judges of the Arnhem Court of Appeal.

2.5.
The text of the article about [A] on the black list of doctors is given below. The article is accompanied by a picture of her.
"A] of the Justice Prosecutor's Office [region] . Involved in the treatment of medical cases, including those concerning failing doctors.
Ignores facts and documents relating to the serious failure of neurologist K., possibly on behalf of others.
Has provoked, obtained and used unlawful evidence in proceedings. Enforced unlawful censorship of the victim of medical malpractice through the courts, in violation of freedom of expression Article 7 of the Constitution and Article 10 of the ECHR. Judgment is therefore null and void.
A] has "forgotten" that Public Prosecutors - the Public Prosecution Service - are expected to focus on finding out the truth, to look after the interests of the Dutch citizens and to act on their behalf. The salary of [A] is nb paid by Dutch citizens.
A] clearly chooses to protect a failing doctor and to ignore the interests of Dutch citizens.
Her husband [plaintiff sub 2] works in the production department [name]."

2.6.
The sentence from the four articles about four judges of the Arnhem Court of Appeal in which [A] is mentioned, is given below.
"Protects failing doctors and failing Public Prosecutor Mr. [A] ."

2.7.
Because [A] has been placed on the websites because of her work as a public prosecutor, the Public Prosecution Service is the plaintiff (and not herself) together with [plaintiff sub 2]. The Public Prosecution Service and others are of the opinion that the aforementioned article on the blacklist of doctors and the statements on the blacklist of judges are unlawful and in conflict with the AVG (General Data Protection Ordinance) and that the placement of the photograph infringes the portrait right of [A] . By means of these preliminary relief proceedings, the Public Prosecution Service wants to ensure that the article and the statements are removed. Defendants et al. disagree with this.

3 What does the judge in preliminary relief proceedings pay attention to during the assessment?
3.1.
If the claims of the Public Prosecution Service are granted, this is a restriction of the freedom of expression of [defendants] (Article 10 paragraph 1 of the ECHR). According to the second paragraph of that article, this right can only be restricted if this restriction is regulated by law and is necessary in a democratic society. Such a restriction exists if the statements are unlawful (Section 6:162 of the Civil Code).

3.2.
When answering the question of whether a statement is unlawful, two important social interests must be weighed up. On the one hand the interest that individual citizens (such as [plaintiff sub 2] and [A] ) are not exposed to lightly imputed allegations through publications. On the other hand, the importance that abuses that affect society cannot - due to a lack of awareness among the general public - continue to exist. Which of these interests is more important in this case depends on all the relevant circumstances. The circumstances that have to be weighed up against each other include, for example, the following:

-on the one hand, the nature of the published suspicions and the seriousness of the expected consequences for the Public Prosecution Service and, on the other hand, the seriousness of the wrongdoing that the publication wishes to denounce;

-the extent to which, at the time of publication, the suspicions were supported by the evidence available at that time;

-the clothing of the suspicions;

-the degree of probability that, in the general interest, the objective pursued could have been achieved by other means - less damaging to the Public Prosecution Service and others - with a reasonable chance of rapid success;

-the likelihood that the information would have been publicised even without the alleged publication. 

3.3.
When it comes to [A], the Court in preliminary relief proceedings also takes into account the following principles from earlier judgments:

-magistrates (such as public prosecutors and judges) must be protected against unsubstantiated statements, because they themselves cannot easily enter the public domain and otherwise the public's trust in the judiciary will be unnecessarily undermined;

-In making public statements of criticism, a distinction must be made between the public persons and organisations against whom the criticism is actually directed and the non-public persons who only actually implement the policies of these organisations or administrators;

-When considering what may and may not be said, it makes a difference whether it is a factual message or a value judgement. If something is presented as a fact, it must be possible to prove it. If something is presented as a personal opinion, that requirement is somewhat less strict, 

3.4.
When it comes to [plaintiff sub 2], the judge in preliminary relief proceedings also takes into account the following starting point from earlier judgments:

- If a publication is about an ordinary citizen, there must be a clear reason to report about that person.

4 The assessment
The DA's office is right.

4.1.
The judge in preliminary relief proceedings is of the opinion that the statements made by [defendants et al.] are unlawful and therefore agrees with the Public Prosecution Service et al. The reasons for this are explained below.
The statements are unlawful

4.2.
The article on the blacklist of doctors contains four accusations against [A] , which she considers to be unlawful. A]:

-illegitimate evidence in the proceedings;

-The Court has enforced unlawful censorship and has thus acted in violation of Article 7 of the Constitution and Article 10 of the European Convention on Human Rights;

-have been "forgotten" that public prosecutors are expected to focus on finding out the truth;

-have ignored facts and documents about the serious failure of a neurologist, possibly by order of others.

4.3.
Of these statements, it will be established one by one that they are factually incorrect.
Statement 1

4.4.
According to [defendants et al.] this statement concerns the question that [A] asked (in any case) one doctor of [defendant sub 1], namely whether [defendant sub 1] could attend the criminal proceedings. The doctor who gave an answer to that question, an incorrect answer according to [defendant et al.] by the way, did not have permission from [defendant sub 1] to do so. According to [defendant et al.] this doctor has therefore violated his professional secrecy. This is a crime (Article 272 of the Criminal Code, Criminal Code). Because [A] asked the doctor for medical information, she provoked this crime (article 47 of the Criminal Code), thinks [defendants et al.] The information was then communicated to the court.

4.5.
The Court in preliminary relief proceedings sees this differently. While doing her job as a public prosecutor [A] asked a doctor a question. This was necessary to determine what she thought of [defendant sub 1]'s request for postponement. It is up to the doctor to whom she asked the question to determine whether he gives an answer. Asking the question is not an offence. Therefore, statement 1 is factually incorrect.
Statement 2

4.6.
By this statement [defendants et al.] means that the criminal case against [defendant sub 1] has been treated without her being present, because [A] has passed on the information of the doctor to the court. Therefore [defendant sub 1] has not been able to defend herself in the criminal case. That is why she believes that she has been censored in violation of the sections of the law mentioned by her.

4.7.
The Court in preliminary relief proceedings ruled that it is not plausible that [A] actually or legally caused [defendant sub 1] to be absent during the handling of her criminal case. defendant sub 1] the court reported that she was medically unable to attend the hearing. A] has put other information against this. Finally, the court decided that the hearing would take place without [defendant sub 1]. Therefore, statement 2 is also factually incorrect.
Statement 3

4.8.
The accusation that [A] would have "forgotten" that public prosecutors are supposed to focus on finding the truth, is also related to the fact that [defendant sub 1] could not attend her own criminal case because of the medical information that [A] has given to the court, so says [defendants c.s.].

4.9.
As far as the remark is about [defendant sub 1] not attending the hearing, it has already been ruled above that the remark is factually incorrect. Insofar as the statement concerns other things, [defendant et al.] has made this accusation insufficiently concrete to be able to conclude that this is a factually correct statement.
Statement 4

4.10.
The accusation that [A] has ignored facts and documents about a neurologist's failure is about the following. In the criminal case in which she was prosecuted for libel, slander and/or insult of that neurologist, [defendant sub 1] has often referred to documents which, according to her, show that the neurologist has made serious mistakes. A] has not given the same meaning to these documents. That is why [defendants c.s.] think that [A] has ignored those documents.

4.11.
To give a different meaning to documents is not the same as ignoring them. That is why the Court in preliminary relief proceedings ruled that the fourth statement was also factually incorrect.
Statements on the blacklist of judges

4.12.
In these statements, [A] is referred to as a failing public prosecutor. In view of what is stated above, this is factually incorrect.
Balance of interests

4.13.
In this regard, it was ruled that all allegations about [A] were factually incorrect. It has not become plausible that the criticism of [A] in the performance of her duties is justified. It must be possible to denounce abuses - such as mistakes by doctors, judges or public prosecutors - but not by publishing factual inaccuracies. Moreover, it does not follow from the facts that there is an abuse to be reported. Insofar as it concerns a value judgment and not factual statements, the statements are still not lawful in view of the factual inaccuracies therein.
In short, [defendants et al.] from serious accusations, which are presented as factually true, but which are not correct. There is no evidence of an abuse that must be denounced. Also [defendants et al.] address the person, [A] , instead of her employer, the Public Prosecution Service, and [A] is less able to defend herself as a public prosecutor. The balance of interests is therefore in favour of the Public Prosecution Service: the statements about [A] are unlawful.

4.14.
The statements about [plaintiff sub 2] are also unlawful. In the article on the blacklist [defendants et al.] refer to him as a doctor, because he works for the public broadcasting corporation. That in itself is correct, but there is no clear reason to report specifically about him and there must be one. That he is married to [A] is not enough. Certainly not, now that wrongly serious accusations have been made about her and he has been associated with it.

4.15.
She mentions a judgment of the District Court of Groningen of 25 September 2009 and a judgment of the District Court of Central Netherlands of 24 October 2018 from which, according to her, it appears that the Dutch court has given permission for the blacklist of doctors. Defendants et al.] also mentions a judgment of the Court of Appeal of The Hague of 26 July 2019, which, according to her, shows the lawfulness and the social importance of the blacklists. Insofar as this is true, it is true that this does not mean that every expression to be published on that website is lawful in advance. These statements therefore do not lead to a different opinion than that given above.
The photo in the publication infringes the portrait right of [A].

4.16.
Defendant et al.] says that she simply removed the photo she used in the article on the blacklist of doctors from a website. So the photo was already available in the public domain, she says.

4.17.
The Public Prosecutor's Office has said that the photo was taken on commission. In that case the photographer, who has the copyright to the photograph as the creator of the photograph, may not publish the photograph without the consent of the person portrayed (Article 20 of the Copyright Act). If a third party more or less accidentally acquires possession of this photograph, it may only publish it with the consent of the person portrayed. The third party does not have more rights than the creator of the photo himself. Defendants etc.] did not have permission from [A] to place the photograph on the websites and therefore infringed her portrait right.
The publications are in conflict with the AVG

4.18.
The Public Prosecution Service (OM et al.) has stated that and explained why the publication of the blacklists is contrary to Articles 33, 35 and 36 of the AVG. This has not been contradicted by [defendants et al.] and the Court in preliminary relief proceedings has found this to be the case.
defendant sub 1] is privately liable

4.19.
Defendants [defendant c.s.] is of the opinion that the claims against [defendant sub 1] should be dismissed in private, because no private accusation can be made against her. The websites on which the statements are made are in the name of SIN-NL and are managed by that foundation. The content on these sites is therefore the responsibility of SIN-NL. Defendant sub 1] acts as chairman of SIN-NL and within the objective of that foundation, so says [Defendants c.s.].

4.20.
The Court in preliminary relief proceedings ruled differently. Individuals are privately liable for texts written in their own title and that is what it is about in this case. The article on the blacklist of doctors is about what according to [defendant sub 1] happened in private in the criminal case against her. It is not about the general purpose of the foundation: to improve the position of victims of medical errors. The statements on the blacklist of judges refer to the article on the blacklist of doctors.
The Public Prosecution Service has said that [defendant sub 1] is also able to remove the texts from the websites himself. She did not deny this, so the Court in preliminary relief proceedings assumed that she could do this.
The claims were upheld

4.21.
All in all, the Court in preliminary relief proceedings is of the opinion that the publications are unlawful and that both defendants can be held liable for this. The claims of the Public Prosecution Service for their removal are therefore granted. The entire article on the blacklist of doctors must be removed. If the four unlawful statements and the photograph are discarded, one sentence remains: "[A] from the Public Prosecutor's Office [region] . Involved in the treatment of medical cases concerning failing doctors" and this sentence does not justify inclusion on the blacklist. The statements about [A] in the articles on the blacklist of judges must also be removed.
Both SIN-NL and [defendant sub 1] are therefore ordered to remove the article and the statements.

4.22.
The requested penalty payment will be awarded.

4.23.
Defendants et al.] has been proved wrong and is therefore ordered to pay the costs of the public prosecutor's office et al. These costs are estimated at:
-writ of summons € 99.01
-Registrar's fee 639,00
-lawyer's salary 980.00
Total € 1,718.01
The counterclaim is not allowed

4.24.
Defendant sub 1] wanted to bring a counterclaim for compensation of damages at the hearing, but that is not possible. A (counterclaim) in trade summary proceedings, such as this one, can only be made by a lawyer. The lawyer of [defendant sub 1] has not filed the claim. Defendant sub 1] himself is a lawyer, but not a lawyer. The counterclaim is therefore not allowed.

5 The decision
The judge in preliminary relief proceedings

5.1.
Condemns [defendants c.s.] to remove the article on the blacklist doctors and to keep the statements on the blacklist judges removed from the websites within 24 hours after service of this judgment,

5.2.
orders [defendants et al.], within 48 hours after service of this judgment, to submit a request (or have a request submitted) to internet search engine Google, submitting the judgment to Google, to remove the articles and all references to it from the search results of this search engine and from its "chache memory", while simultaneously sending a copy of these requests to the attorney of the Public Prosecutor's Office et al,

5.3.
Condemns [defendants et al.] to pay the Public Prosecution Service a penalty payment of € 5,000 for each day or part thereof that it does not comply with the main conviction pronounced in 5.1 and 5.2, up to a maximum of € 100,000 has been reached,

5.4.
orders [defendants et al] to pay the costs of the proceedings, on the part of the Public Prosecutor's Office to date estimated at € 1,718.01, to be increased by the statutory interest as referred to in Article 6:119 of the Civil Code on this amount with effect from the fifteenth day after the date of this judgment until the date of full payment,

5.5.
orders [defendants et al.] to add to the costs incurred after this judgment, estimated at € 157.00 in attorney's salary, on the condition that [defendants et al.] did not comply with the judgment within 14 days after the instruction and subsequently service of the judgment has taken place, an amount of € 82.00 in attorney's salary and the costs of the operation of service of the judgment,

5.6.
declares this judgment provisionally enforceable.
This judgment was rendered by F.C. Burgers and pronounced in public on 25 October 2019.1.</pre>