Rb. Gelderland - C/05/368427

Rb. Gelderland - C/05/368427 / KG ZA 20-106
Court:	Rb. Gelderland (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 2(2)(c) GDPR Article 8(1) GDPR
Decided:	13.05.2020
Published:	13.05.2020
Parties:
National Case Number/Name:	C/05/368427 / KG ZA 20-106
European Case Law Identifier:	ECLI:NL:RBGEL:2020:2521
Appeal from:
Appeal to:
Original Language(s):	Dutch
Original Source:	de Rechtspraak (in Dutch)
Initial Contributor:	n/a

The Court of First Instance of Gelderland decided that the processing of personal data (photos) of the plaintiff’s minor children by their grandmother is unlawful and should be based on the legal representative’s consent. The Court ruled that it was impossible to establish with certainty that the posting of photos on social media fell under the “household exemption” of Article 2(2)(c) GDPR.

English Summary

Facts

A mother of three underage children (plaintiff) filed a claim in the Court to cease the posting of her children’s photos by their grandmother (defendant) on social media. The plaintiff argued that the defendant had not obtained a consent from her or her ex-partner – the legal representatives of one of the children concerned.

Dispute

Despite several letters requesting the defendant to remove photos from her Facebook page, the defendant did not comply with the request. The defendant’s child (child 1), whom the current proceedings concern, is under 16 years old. The Dutch GDPR Implementation Act (Uitvoeringswet Algemene Verordening gegevensbescherming) (“UAVG”) stipulates that the posting of photos of minors who have not yet reached the age of 16 requires their legal representative(s)’ consent. The plaintiff, as a legal representative, had not given permission to post photos of her children on social media. In the case of child 1, his father also had not granted permission to the defendant.

Holding

The Dutch GDPR Implementation Act (Uitvoeringswet Algemene Verordening gegevensbescherming) (“UAVG”) stipulates that the posting of photos of minors who have not yet reached the age of 16 requires the permission of their legal representative(s).

The Court ruled that it was impossible to establish with certainty that the posting of photos on social media fell under the “household exemption” Article 2(2)(c) GDPR. Therefore, such processing of plaintiff’s photos falls within the scope of the GDPR.

Given the lack of consent, the Court ordered the defendant to remove the photo of child 1 from her Facebook page as well as to remove the photo of the plaintiff from the Pinterest account. In addition, the defendant is prohibited from posting without permission photos of plaintiff’s minor children on social media.

Comment

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Further Resources

• Oma moet van rechter foto’s kleinkinderen van social media verwijderen where Arnoud Engelfriet explains that the court is wrong stating that Article 5 UAVG stipulates that for publishing pictures of minors, permission of their legal representative(s) is required. Instead it stipulates when permission is required, their legal representative(s) have to give the permission. So if a different legal basis from Article 6 GDPR is used, no permission is necessary.

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.

ECLI:NL:RBGEL:2020:2521

Authority
    Court of Gelderland
Date of pronunciation
    13-05-2020
Date of publication
Case number
    C/05/368427
Jurisdictions
    Civil Justice
Special features
    First instance - single
    Interim injunction
    By contradiction
Content indication
    Post photos of underage children on social media. AVG. Personal and household activity? Permission from legal representatives.
Places
    Rechtspraak.nl
    Enriched pronunciation 
Ruling
judgment
COURT OF MONEY
Team canton and commercial law
Sitting Place Arnhem
Case number / reel number: C/05/368427 / KG ZA 20-106
Judgment in preliminary relief proceedings of 13 May 2020
in the matter of
[plaintiff]
residing at [residence 1] ,
plaintiff,
attorney at law J.W.J. Hopmans in Groesbeek,
by
[defendant],
residing at [residence 2] ,
defendant,
appeared in person.
The parties will hereinafter be referred to as [plaintiff] and [defendant].
1 The proceedings
1.1.
The course of the procedure is evidenced by
    -
    the indictment of 16 April 2020 with productions 1 to 6
    -
    the emails of 20 and 27 April 2020 of [defendant] with attachments
    -
    the email message of 29 April 2020 from [plaintiff] with a production
    -
    the [plaintiff's] pleadings submitted in connection with the Corona measures prior to the oral hearing
    -
    the oral hearing on the Corona measures held by telephone on 29 April 2020.
1.2.
Finally, a judgment has been rendered.
2 The facts
2.1.
[plaintiff] is the daughter of [defendant]. Due to an argument, the parties have had no contact with each other for over a year now.
2.2.
plaintiff] has three now minor children: child 1] , born on [date of birth], [child 2] , born on [date of birth], and [child 3] , born on [date of birth].
claimant] and her ex-partner [ex-partner] have joint parental authority over [child 1] . About [child 2] and [child 3] [plaintiff] has only parental authority.
2.3.
In the period from April 2012 to April 2019 [child 1] lived with his grandparents, [defendant] and her husband. After that he went to live with his father, [ex-partner], in [residence 3].
2.4.
defendant] has (in the past) placed pictures of the children of [plaintiff] on her Facebook page.
2.5.
By letter of February 29, 2020, [plaintiff] wrote to [defendant], among other things, the following:
(...) You have been asked several times via the police to [place] , to remove the pictures on your social media concerning my minor children. Since you do not comply with this request and I, as authoritative party, do not want my minor children to be shown on social media, please inform yourself once again to remove the photographs by this means. If you do not do this, I will take further steps. In addition, my lawyer has already indicated that for each day that you exhibit photos of my minor children without permission from the authority, there will be a penalty payment.
So you have until Thursday 5 March to remove the photos from all your social media platforms. If you do not do this you will soon hear from my attorney.
2.6.
In a letter dated 18 March 2020, [plaintiff's] lawyer has again summoned [defendant] to remove all posted pictures of the children of [plaintiff] and not to post any pictures of the children on social media in the future.
2.7.
On 24 March 2020, [plaintiff] informed her lawyer of the following, among other things:
The letter that you sent does not matter to Ms. [remark of interlocutory judge: [defendant] ]. This is evidenced by the fact that on Sunday she already put a new profile photo of my children on fb.
I want madam to be dealt with by the court now...
2.8.
Through What's App, [ex-partner] has confirmed to [plaintiff] that he too does not want pictures of [child 1] to be posted on Facebook.
3 The dispute
3.1.
Plaintiff] claims that the Court in preliminary relief proceedings, enforceable provisionally, will prohibit [defendant] from posting, showing or otherwise distributing photographs of the minor children of [plaintiff] on social media, as well as order [defendant] to immediately remove all photographs of [plaintiff's] children already placed by her on social media, all this on forfeiture of a penalty of € 250.00 for each day or part of a day that [defendant] fails to do so as of service of the judgment to be given in this case, with an order that [defendant] pay the costs of the proceedings.
3.2.
plaintiff] bases her claims on the fact that [defendant] is acting unlawfully, or in violation of the Dutch Data Protection Act or the General Data Protection Ordinance (AVG), by placing photographs of the minor children of [plaintiff] on social media without her permission. Because of the privacy of the children and in order to protect them, [plaintiff] does not want pictures of the children to be posted on social media. Publishing photographs of the children on social media seriously infringes the privacy of her children, according to [plaintiff].
3.3.
[defendant] Respond. She acknowledges that in the past she posted photos of her grandchildren on her Facebook page. However, she argues that she respects the privacy of her grandchildren and that in the meantime she has removed all photos from Facebook, except for a photo of [child 1]. She asks the Court in preliminary relief proceedings whether she may only leave this photo on her Facebook page, now that she has a special relationship with [child 1] because she has taken care of him for a longer period of time.
3.4.
In so far as relevant, the arguments of the parties will be discussed in more detail below.
4 The assessment
4.1.
The urgent interest in the requested provisions stems sufficiently from [plaintiff's] assertions.
4.2.
It follows from the statements of [defendant] , which are not at least insufficiently substantiated, that at this moment there is only a photo of [child 1] on [defendant's] Facebook page. During the oral hearing by telephone, however, it came up that [defendant] also has a photo of [plaintiff] and her children on Pinterest, of which [plaintiff] wishes it to be removed as well. Defendant] has remarked about the photo on Pinterest that there may still be a photo there, but that she has not used Pinterest for years.
Therefore, the Court in preliminary relief proceedings considered it to be insufficiently disputed that at this moment only a photo of [child 1] is still on [defendant's] Facebook page and a photo of [plaintiff] and the children on [defendant's] account with Pinterest.
4.3.
The question is whether [defendant] is obliged to remove the pictures of the children of [plaintiff] from social media, including Facebook and Pinterest. The Court in preliminary relief proceedings considered the following.
4.4.
It has not been stated or proven that [plaintiff] or [defendant] is the maker of the photo of [child 1] on Facebook or the photo of [plaintiff] and her children on Pinterest. This means that in the scope of these interlocutory proceedings it must be assumed that the provisions of the Copyright Act do not apply to the present dispute.
4.5.
The General Data Protection Regulation (hereinafter: AVG) protects the fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data. However, this Regulation does not apply to the processing of personal data by a natural person in the exercise of a purely personal or household activity. Although it cannot be excluded that the placing of a photo on a personal Facebook page falls under a purely personal or household activity, in the preliminary opinion of the Court in preliminary relief proceedings, it has not been sufficiently established how [defendant] set up or protected her Facebook account or her Pinterst account. It is also unclear whether the photographs can be found through a search engine such as Google. In addition, with Facebook it cannot be ruled out that placed photos may be distributed and may end up in the hands of third parties. In view of these circumstances it has not appeared in the scope of these preliminary relief proceedings that there is a purely personal or domestic activity of [defendant]. This means that the provisions of the General Data Protection Act (AVG) and the General Data Protection Implementation Act (hereinafter: UAVG) apply to the present dispute.
4.6.
The UAVG stipulates that the permission of their legal representative(s) is required for the posting of photographs of minors who have not yet reached the age of 16. It has been established that the minor children of [plaintiff] are under the age of 16 and that [plaintiff], as legal representative, has not given permission to [defendant] to post photographs of her children on social media. In the case of [child 1], his father did not give [defendant] permission either. In view of this the Court in preliminary relief proceedings will order [defendant] to remove the photo of [child 1] on Facebook and the photo of [plaintiff] and her children on Pinterest. In addition, [defendant] will be prohibited from posting pictures of the minor children of [plaintiff] on social media without permission (as referred to in the AVG and UAVG). The emotional importance of [defendant] to be allowed to place photographs on social media cannot lead to a different judgment in this respect.
4.7.
The amount of the periodic penalty payment claimed will be moderated and capped as stated below. For the term within which the already placed photographs on social media have to be removed, the Court in preliminary relief proceedings will take into account that [defendant] has declared not to use Pinterest anymore and that therefore more time may be needed to remove the photograph.
4.8.
In view of the family relationship between the parties, the litigation costs between the parties will be compensated, in the sense that each party will bear its own costs.
5 The decision
The judge in preliminary relief proceedings
5.1.
condemns [defendant] to remove (or have removed) the photo of [child 1] on her Facebook account and the photo of [plaintiff] and her children on her Pinterest account within ten days after service of this judgment,
5.2.
condemns [defendant] to pay to [plaintiff] a penalty payment of € 50.00 for each day she fails to comply with the main order given in 5.1, up to a maximum of € 1,000.00,
5.3.
prohibits [defendant] from posting, displaying or otherwise distributing photographs of [plaintiff's] minor children on social media,
5.4.
condemns [defendant] to pay to [plaintiff] a penalty of € 50.00 for each day she violates the prohibition mentioned under 5.3. after the service of this judgment, up to a maximum of € 1,000.00,
5.5.
declares this judgment provisionally enforceable,
5.6.
Compensates for the costs of these proceedings between the parties, in the sense that each party bears its own costs,
5.7.
Rejects the more or otherwise advanced.
This judgment has been handed down by Mr. S.J. Peerdeman and publicly pronounced and signed by Mr. K. van Vlimmeren-van Ommen on 13 May 2020.