GHAMS - 200.292.660/01

GHAMS - 200.292.660/01
Court:	GHAMS (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 6(1)(f) GDPR Article 43 UAVG
Decided:	25.10.2022
Published:	30.10.2022
Parties:
National Case Number/Name:	200.292.660/01
European Case Law Identifier:	ECLI:NL:GHAMS:2022:3023
Appeal from:
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	rechtspraak.nl (in Dutch)
Initial Contributor:	Jette

The Dutch Court of Appeal of Amsterdam held that a website owner's journalistic interests outweighed the right to privacy of the data subject regarding articles where he was exposed as a scammer.

English Summary

Facts

The controller carried out activities in the field of media. Via its website, it published articles, that were also sometimes published in national newspapers. Among these articles was a 28-page file about the data subject. One article referred to the data subject as a master swindler. Another article stated that the data subject sold phone cards to detainees and scammed them. The publications included the data subject's full name, date of birth and a photograph.

The data subject deemed these publications unlawful pursuant to the GDPR and Article 8 ECHR and took the matter to court. The data subject claimed that the controller was liable for €40,000 in damages and also requested a ban on any future publications about him. The Court of First Instance dismissed the claims. It considered that the controller processed the personal data for journalistic purposes and that in this case, the freedom of expression of the controller outweighed the protection of the data subject's privacy. The Court noted that the press has a watchdog function, in particular with regard to fraud and the importance of warning the public about it.

The data subject appealed the decision of the Court of First Instance. He opposed the Court's finding that the controller processed personal data for journalistic purposes on its website. According to the data subject, the controller's purpose was to make people look bad and that the controller acted out of spite. The controller had no legal ground for processing pursuant to Article 6 GDPR. Therefore, the journalistic exception laid down in Article 43 of the Dutch Implementation Act for the GDPR (UAVG) was not applicable.

Holding

The Court of Appeal of Amsterdam stated, firstly, that the term 'journalistic' within the meaning of Article 43 UAVG should be interpreted broadly. The Court found that controller's website aimed to inform the public about fraudulent activities. The data subject's statement that the controller's purpose was to make people look bad was not substantiated. In this respect, the Court added that the sole circumstance that a journalist had personal motive in addition to the journalistic purpose does not make the processing fall outside the scope of Article 43 UAVG. Especially when the publication serves to legitimately draw attention to wrongs. Therefore, the Court held that the data subject could not invoke the right to rectification and erasure laid down in Articles 16 and 17 GDPR.

However, the Court noted that the prohibition from Article 10 GDPR (criminal data) was still applicable. In this regard, the Court stated that processing of criminal data was allowed insofar the processing was necessary for the journalistic purpose pursuant to Article 43(3) UAVG. The Court held that processing was in fact necessary in this case because the publications concerned reporting on and warning about fraudulent practices.

Regarding the data subject's argument that there was no legal basis for processing, the Court held that journalistic activities were a legitimate interest for processing pursuant to Article 6(1)(f) GDPR. The Court stated that the necessity to report and warn about fraudulent practices outweighed the data subject's right to privacy.

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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.

judgment

AMSTERDAM COURT

Department of Civil Law and Tax Law, Team I

case number : 200.292.660/01

case/role number Amsterdam court: C/13/663268 / HA ZA 19-295

judgment of the multiple civil chamber of 25 October 2022

regarding

[appellant] ,

living in [residence 1] ,

appellant,

lawyer: mr. A. Tariki in Arnhem,

against

[respondent] ,

living in [residence 2] ,

defendant,

not published.

The parties are hereinafter referred to as [appellant] and [respondent].

1 The case in brief

This case concerns publications that [respondent] has made on his website about [appellant] and of which the purport is, in short, that [appellant] is a fraud. The publications include the name, date of birth and a photo of [appellant]. [appellant] demands a ruling that these publications are unlawful and that [respondent] is therefore liable for compensation, as well as a ban on such publications in the future.

2 The appeal proceedings

[appellant] lodged an appeal against a judgment of the Amsterdam District Court of 12 June 2020 by summons dated September 11, 2021; under the above case

/role number issued between [appellant] as plaintiff and [respondent] as defendant. The [Buyer] has been appealed in absentia.

[Buyer] subsequently submitted a statement of appeal, with exhibits. Finally, a judgment has been requested.

[Buyer] has concluded that the Court of Appeal will quash the contested judgment and, as the Court understands, will still grant - provisionally enforceable - his claims, ordering [Defendant] to pay the costs of the proceedings in both instances with subsequent costs and interest. .

The appellant has presented evidence of his allegations on appeal.

3 Facts

In the contested judgment under 1.1, the court referred for the facts it took as its starting point to the facts stated under 2.1 to 2.5 in the decision of the same court of 31 January 2019 (with case/application number C/13/ 6512332 /HARK 18-225) to a petition from [appellant] and in which the District Court, pursuant to Article 69 Rv. ordered that the case be continued as subpoena proceedings.

Summarized and supplemented where necessary with other facts that have been established, the facts come down to the following.

3.1

[respondent] , also trading under the name [company 1] , carries out activities in the field of media.

3.2

Since 2003, the domain name [website] has provided access to a website on which, among other things, articles have been published that had previously been published in national newspapers, as well as a 28-page file about [appellant]. This contains, among other things, the full name and date of birth of [appellant]. In one of the articles [appellant] is referred to as a master scammer and a recognizable photo of [appellant] is included. In another article it was stated that [appellant] sells telephone booths to detainees, whereby he defrauds the detainees. The colophon of the website states, among other things:

"[website] is an initiative of [company 1] in [place 1] and set up to expose abuses in the media world.(...) Editors: [respondent] ."

The information on the website [website] has not been supplemented after 2010.

3.3

According to the registration of the domain name with SIDN, [company 1] was the holder of the domain name [website] .

3.4

On May 31, 2018, a written objection was lodged with [respondent] on behalf of [appellant] against the use of his personal data and requested that it be removed and kept removed. [Defendant] did not respond substantively to that request. On 6 July 2018, another request was made to this effect, to which [appellant] also received no response from [respondent].

3.5

On March 6, 2019, the website was taken off the air and since then it is no longer available for consultation.

4 Review

4.1

[appellant] has claimed, in abbreviated form:

I. a declaratory judgment that [respondent] has acted unlawfully towards him;

II. a prohibition to process data of [appellant] on websites, at least insofar as the publication is associated with an accusation of [appellant] as a (notorious) fraudster or contains another illegitimate and/or offensive statement, with a penalty payment;

III. payment of €40,000 in damages, with statutory interest from 24 August 2010, at least from a later date.

4.2

[Buyer] bases these claims, in summary, on the fact that the information published about him concerns personal data, the processing of which is in violation of the General Data Protection Regulation (EU) 2016/679 (GDPR) and with the right to respect for privacy. according to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and that this was done without his consent.

4.3

The court dismissed the [appellant's] claims. To that end, it considered, in summary, that the website [website] contains processing of personal data for journalistic purposes and that in this case the freedom of expression of [respondent] weighs more heavily than protection of the privacy of [appellant]. The press has a watchdog function, especially with regard to offense fraud and the importance of warning the public. It has not been shown that [appellant] contested the publications to which [respondent] refers as incorrect, so that [respondent] could assume their correctness and that correctness does not have to be assessed in these proceedings.

4.4

The appellant raises his grounds of appeal against this decision and the grounds on which it is based.

4.5.1

The first ground of appeal of [appellant] is directed against the court's judgment that [respondent]'s website contains processing of personal data for journalistic purposes.

4.5.2

The background to that judgment was as follows. [Buyer] had initiated the proceedings at the court with a petition as referred to in Article 35 of the General Data Protection Regulation Implementation Act (UAVG), in which he had formulated requests that are comparable to the claims referred to under 4.1 above. In its aforementioned decision of 31 January 2019, the court considered that, according to article 43 paragraph 1 UAVG, the application procedure referred to does not apply if it concerns the processing of personal data for exclusively journalistic purposes, and has ruled that this is the case now that the publication by [respondent] is apparently intended to expose alleged abuses that are attributed to [appellant].

This decision was in so many words upheld by the District Court in the contested judgment (para. 1.1).

4.5.3

The Court of Appeal is of the opinion that the processing of personal data by [respondent] took place exclusively for journalistic purposes as referred to in Article 43 UAVG. In doing so, the Court of Appeal puts first, just like the District Court in para. 4.4 of the said decision, that in this context the term 'journalism' must be interpreted broadly. [Buyer] pointed out in the first instance that with his website he intended to report on fraud practices in the Netherlands in order to expose abuses and to act as a 'watchdog' and thus protect entrepreneurs from being duped. The Court of Appeal is of the opinion that the facts about which [respondent] reported fully justify and make plausible this objective. That his objective was in fact, as [appellant] argues, to 'defame specific persons' with [respondent's] former employer or that he acted out of spite

· against that old employer, [appellant] has insufficiently substantiated concretely against the statements of [respondent] and the established content of the website. The Court of Appeal also notes that, when a journalistic expression seeks to legitimately draw attention to abuses, the mere fact that in addition to this journalistic aim, the journalist also has a personal motivation in the form of, for example, anger about the subject he is discussing. writes, does not mean that processing for 'exclusive journalistic purposes' within the meaning of article 43 UAVG is not applicable.

4.6

The foregoing means that in this case [appellant] cannot invoke the rights to rectification and erasure of data laid down in Articles 16 and 17 GDPR pursuant to Article 43 paragraph 2 of the GDPR. However, this does not alter the fact that the principles and rules regarding the lawfulness of the data processing laid down in Articles 5 and 6 GDPR do apply to the processing operations by [respondent], and that pursuant to Article 43 paragraph 3 UAVG the restrictions laid down in Articles 9 and 10 GDPR processing of special and criminal data only remain inapplicable insofar as such processing is necessary for the journalistic purpose.

4.6.1

[appellant] takes the position that the processing by [respondent] was not lawful within the meaning of Article 6 GDPR in conjunction with Article 43 UAVG because, the Court of Appeal understands, that processing could not be regarded as (exclusively) journalistic activity. and for that reason no basis can be pointed out in Article 6. The Court of Appeal has already ruled above under 4.5.3 that the processing by [respondent] did indeed serve a journalistic purpose. The basis of Article 6 GDPR under f can also be invoked for data processing for the purpose of journalistic activity, namely when such processing is necessary for the representation of the legitimate interests of the controller (in this case: [respondent]), unless, in short , the data subject's right to privacy takes precedence. That in itself, in a case such as this, the interest of the journalist requires that detailed personal data and a portrait photo as referred to above under 3.2 can be mentioned, also in view of the warning function regarding the actions of the person of [appellant] , for itself and has not been contested by [appellant] with sufficient reasons. The fact that a balancing of fundamental rights does not lead to a different opinion follows from what the Court of Appeal considers below under 4.7.1 to 4.7.6.

4.6.2

Insofar as [appellant] argues that [respondent] has also processed criminal data about [appellant] in violation of the GDPR, the court finds that in a case such as this, when it comes to reporting about and warning about fraudulent practices, the mention of such data related criminal convictions of the data subject can be considered necessary for the journalistic purpose, so the limitations of Article 10 GDPR on criminal data do not apply.

4.7

For the rest, the grounds of appeal of [appellant] come down to the fact that the court did not properly weigh up [appellant]'s right to protection of his privacy and personal data against [respondent's] right to freedom of expression and of information.

4.7.1

According to the case law of the European Court of Justice, when balancing the protection of personal data and the freedom of expression, a number of criteria must be taken into account, in particular the contribution to a debate of public interest, the reputation of the person concerned, the subject of the message, the previous behavior of the person concerned, the content, form and consequences of the publication, the manner in which and the circumstances in which the information was obtained and the veracity (CJEU 14 February 2019, case C-345 /17, ECLI:EU:C:2019:122 (Buivids), para 66).

4.7.2

Testing the circumstances of the present case against these criteria shows that the intended publication and making available via the website of [respondent] towards [appellant] did not constitute unauthorized processing of his personal data or were otherwise unlawful. To this end, the court considers as follows.

4.7.3

The website concerned served to report about fraudulent practices in the Netherlands in which, according to the recorded messages, [appellant] played a leading role, which reporting also had the aim of denouncing the fraud and preventing others from becoming victims of it in the future. In doing so, [Buyer] raised a matter of public interest.

4.7.4

With regard to the facts stated therein, [appellant] has stated in general terms that they were incorrect, but [appellant] has not provided any further substantiation thereof on appeal - except with regard to [appellant]'s involvement in (bankruptcy and bankruptcy) restart of) TV-Gazet, but it was not part of the facts or allegations published by [respondent]. From the facts and criminal convictions included in the reports, of which, as stated, [appellant] has not substantiated in any part that these are incorrect, a picture emerges of [appellant] as someone who repeatedly sees the opportunity to defraud people and companies. and cause damage.

4.7.5

With regard to the reputation of the person involved and his previous behaviour, the Court of Appeal takes into account that, although [appellant] is not a well-known Dutch person, he is someone who, after he had already appeared in the press in 1999 and 2003, by name and first name. due to fraud alleged against him, sought publicity in 2003 through television appearances (paid by him). The portrait of [appellant] that was depicted on [respondent]'s website was derived from a broadcast of the program 'TROS Oplicht!' In the years 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2014 and 2016, articles about [appellant] were also published in various national newspapers in which he was mentioned by name and first name and new cases of fraud or similar activities were reported. committed by [appellant] or of which he was suspected. Since 2003, [appellant] has had a website with the address www. [appellant] .nl on which he reports about his business and consultancy activities and also includes a portrait photo of him. In 2013, [appellant] filed the name '[appellant]' as a Benelux word mark for, among other things, legal services, which trademark was subsequently registered with a term of validity until 2023, stating '[appellant]' as the trademark owner, stating a residential address in [place 2] . In 2018, [appellant] presented himself as a leader of a political party in [place 3] and as a candidate in the elections for the district committee [place 4]. As a result, the media, other other Het Parool and AT5, published in February and March 2018 about [appellant] and his convictions for involvement in fraud. It can thus be concluded that [appellant] was partly to blame for the fact that he was regularly republished in this context for many years.

4.7.6

In view of all the foregoing, the Court of Appeal is of the opinion that both the publication and the subsequent keeping available for consultation by [respondent] of the said data about [appellant] were justified by the right of [respondent] to freedom of expression and information, which right in this case outweighed the interest of [appellant] in the protection of his personal data. There is no reason to rule differently about the right of [respondent] to freedom of expression as opposed to [appellant]'s right to protection of his privacy. [Buyer] finally had the relevant data removed from the website in March 2019, the day after the summons was served on him in the first instance. The fact that the data had remained available for consultation up to that point - even though they have not been supplemented by [respondent] since 2010 - cannot be regarded as disproportionate use of personal data now that [appellant] in the period up to the moment of removal, usually as a result of his own conduct, regularly and most recently in 2018, because of similar facts to those reported by [Buyer], so that the data on the website still formed a relevant and permissible contribution to information and/or discussion about the above-mentioned information. 4.7.3 matter of public interest referred to.

4.8

It follows from what has been considered and decided above that the making and keeping of the data available via the website by [respondent] towards [appellant] was not unlawful, and that [respondent] is therefore not obliged to pay [appellant] for this. to pay compensation.

4.9

In view of the foregoing, there is also no reason to allow [appellant] to submit evidence since his offer of evidence, apart from the facts regarding the motive of [the respondent]'s attention to [appellant] and about the TV-Gazet that the Court of Appeal referred to under 4.5. 3 and 4.7.4, respectively, as irrelevant, relates exclusively to the existence and extent of the damage alleged by [appellant].

4.10

[appellant] has also claimed that [respondent] be prohibited from publishing the information referred to here, or at least similar, in the future.

In itself it is conceivable that at some point in the future making such information available again (or still) for consultation must be regarded as not (any longer) justified and not (any longer) necessary for a journalistic purpose. However, there is no room for a judicial injunction for the future in this case, if only because [appellant] has not argued and made plausible that there is currently a real threat of renewed or continued publication by [respondent].

Final Consideration

4.11

The grievances fail. The verdict from which appeal will be affirmed. As the unsuccessful party, [appellant] will be ordered to pay the costs of the appeal proceedings.

5 Decision

The court:

confirms the judgment appealed from;

orders [appellant] to pay the costs of the appeal proceedings, which have been estimated at nil on the part of [respondent] to date.

This judgment was rendered by mrs. D. Kingma, H. Struik and A.W.G. Artz and pronounced in public by the roll counsel on October 25, 2022.

mr. J.C.W. Rar.9