GHAL - 200.254.914

GHAL - 200.254.914
Court:	GHAL (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 6(1)(f) GDPR Article 17(1)(a) GDPR Article 17(1)(c) GDPR Article 21(1) GDPR Article 48(10) UAVG
Decided:	09.11.2021
Published:	11.11.2021
Parties:
National Case Number/Name:	200.254.914
European Case Law Identifier:	ECLI:NL:GHARL:2021:10370
Appeal from:	Rb. Midden-Nederland (Netherlands) ECLI:NL:RBMNE:2018:5594
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	www.rechtspraak.nl (in Dutch)
Initial Contributor:	Giel Ritzen

The Court of Appeal Arnhem-Leeuwarden confirmed, after conducting the balancing test of Article 21(1) GDPR, that complainant's interest to have certain Google search results linking to his plagiarism, removed, does not outweigh Google's legitimate interest to process this data and the public's interest to receive the information.

English Summary

Facts

On 22 May 2018, complainant, who is a writer, requested Google via a to remove ten search-results that appeared when someone would type in complainant's name via Google Search. The search-results refer to webpages that display a conflict between complainant and a literary critic, since the latter accused complainant of plagiarism and (the accompanying) unjustified use of academic titles.

After Google rejected the request, complainant asked the District Court Midden-Nederland to order google to remove the references to the ten internet addresses on pain of a penalty payment. This Court decided that complainant insufficiently refuted Google's argument that the contested search results are correct, relevant and not excessive, and also because it has not been established that the processing takes longer than necessary. The Court furthermore ruled that the interest of Google and of internet users who may want to gain access to the search results prevails over the interest of complainant.

Complainant appealed against this judgement.

Holding

Before the Court decided on the legitimacy of the deletion request, it assessed whether the applicable legislative instrument is the GDPR, or the (Dutch) Personal Data Protection Act (Wbp). It asserted that the legal proceedings started on 25 May 2018, and Article 48(10) of the General Data Protection Implementing Act (UAVG) states that the Wbp continuous to apply to proceedings that were pending before 25 May 2018 (the date the GDPR entered into force). However, it concluded that the GDPR is the applicable legislative instrument in this case, since the request concerns a request for removal, in respect of which it must be assessed ex nunc whether the processing is (currently) in accordance with the applicable rules.

Then, the Court stated that the request for deletion must be regarded as an appeal to Article 21(1) GDPR, and the Court must therefore conduct the balancing test. In this regard, it acknowledged that complainant had an interest in removal since the search results make it difficult for complainant to find publishers, and work as a teacher. Google, on the other hand, had compelling legitimate grounds for processing since it is in the public's right to find and receive information, and Google's own (economic) interest to provide this information. The Court of Appeal confirmed the District Court's assessment that Google's interest, and the public's right, outweigh complainant's interest, especially considering a few important grounds.

First, the content of the webpages refers to complainant's professional conduct and not his private life. Second, in civil proceedings between complainant and the literary critic, the Court of Appeal ruled that the comments by the critic were sufficiently plausible. Third, complainant did not provide evidence (a diploma) that he obtained a doctoral degree in social sciences, and a doctorate in the United States, and therefore did not make clear that the content of the search results are incorrect. Fourth, it is in the interest of academic institutions and publishers to know whether someone has committed plagiarism and wrongfully used academic titles. Considering these grounds, the Court concluded that complainant's interests do not outweigh Google's legitimate interest and the public's right to be informed, and thus there is not violation of Article 21(1) GDPR.

Lastly, the Court notes that, since complainant keeps posting on social media about the literary critic and the dispute, and keeps writing to newspapers and universities, he contributes to the fact that the content to which the URLs refer, is still topical. Hence, Article 17(1)(a) GDPR does not apply since the there is no processing period longer than necessary.

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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.

                                
                            
        



    Body
    Arnhem-Leeuwarden Court of Appeal
    Date of judgment
    09-11-2021

    Date of publication
    
11-11-2021

    Case number
    
200.254.914

    
            Formal Relationships
            
First Instance: ECLI:NL:RBMNE:2018:5594, Ratification/Confirmation
            
    Jurisdictions
    
Civil rights
    
    Special characteristics
    
Appeal
    
    Content indication
    
Request removal of search results from Google Search. GDPR or Wbp? Consideration of interests

    Locations
    
Rechtspraak.nl
    
        
        
            Enhanced pronunciation
        





    
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            Pronunciation
        
        
  
    COURT OF ARNHEM-LEEUWARDEN
    
    
      location Arnhem
     
    
    
      civil law department
     
    
    
      case number court of appeal 200.254.914
      (case number Central Netherlands court, location Utrecht, 460439)
     
    
    
      
        decision of 9 November 2021
      
     
    
    
      regarding
     
    
    
      
        
          [appellant]
        ,
      residing at [residence] ,
      appellant,
      at first instance: applicant,
      hereinafter: [appellant] ,
      lawyer: mr. G. Boot,
     
    
    
      in return for:
     
    
    
      the company under foreign law Google LLC,
      based in Mountain View, California, United States,
      defendant,
      at first instance: defendant,
      hereafter: Google,
      lawyers: mrs. D. Verhulst and A.J. Trumpet.
     
    
    
  
  
    
      1 The proceedings at first instance
    
    
      For the proceedings in the first instance, the Court of Appeal refers to the content of the decision of the Midden-Nederland District Court of 14 November 2018 (published under ECLI:NL:RBMNE:2018:5594).
     
    
  
  
    
      2 The case on appeal
    
    
      2.1
      The course of the procedure is apparent from:
      - the notice of appeal (with production),
      - the statement of defense (with exhibits),
      - the oral hearing held on August 31, 2021 (after various arrest applicants from [appellant]), in which documents were filed by both parties on August 20, 2021. The lawyers of both parties spoke on the basis of speaking notes during that oral hearing. The official report of the oral hearing is attached to the procedural documents.
      
    
    
      2.2
      After the oral hearing, the court made a decision.
      
    
  
  
    
      3 Summary and decision
    
    
      3.1
      
        [appellant], a writer by profession, requested Google in 2018 to remove ten search results that come up when [appellant's] name is entered in Google Search. These are results that refer to internet pages that deal with a conflict between [appellant] and [name1], a literary critic. [name1] has accused [appellant] of plagiarism and falsely using academic titles. After Google rejected [appellant]'s removal request, [appellant] requested the court to order Google, on pain of forfeiting a penalty, to remove the references to the ten internet addresses (URLs), resulting from the search for his name, from the search results to delete.
      
    
    
      3.2
      The court rejected the request because, in short, [appellant] had insufficiently contradicted Google's assertion that the contested search results are correct, relevant and not excessive, and it has also not been established that the processing takes longer than necessary. The court also ruled that the interest of Google and of internet users who may want to gain access to the search results takes precedence over the interest of [appellant].
      
    
    
      3.3
      In his notice of appeal, [appellant] objects to this. The court also finds that the [appellant's] request cannot be granted. The court's decision will therefore be affirmed. The court explains below why it comes to that conclusion.
      
    
  
  
    
      4 The assessment of the appeal
    
    
      
        Jurisdiction
      
     
    
    
      4.1
      Because the request has an international character, it must first be determined whether the Dutch court has jurisdiction to hear the case. That is the case. Google appeared in the proceedings without contesting the jurisdiction of the Dutch court. Pursuant to Article 26 paragraph 1 of Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 (the Brussels I bis Regulation), the jurisdiction of the Dutch courts is thus given.
      
      
        
          GDPR or Wbp?
        
       
      
    
    
      4.2
      On appeal, Google takes the position that this request must be assessed on the basis of the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (the GDPR). At the hearing of the appeal, [appellant] replied when asked to refer to the judgment of the Court of Appeal on this point.
      
    
    
      4.3
      
        The court agrees with Google that the GDPR is applicable to this case. The GDPR (an EU regulation with priority and direct effect) will apply from 25 May 2018 and repealed the Privacy Directive (Directive 95/46/EC) on the same date (see Article 94 GDPR). That the initiating petition in this case dates from 22 May 2018 and that Article 48, paragraph 10 of the (Dutch) Implementation Act General Data Protection Regulation (the UAVG) stipulates that – in short – the Personal Data Protection Act (Wet Bescherming Persoonsgegevens) introduced to implement the Privacy Directive ( Wbp) continues to apply to proceedings that were already pending before 25 May 2018, that does not change in this case. This is because this concerns a removal request, in which it must be assessed 'ex nunc' whether the processing (at the moment) is in accordance with the applicable rules, while it is moreover established that the AVG does not have its own transitional arrangement and the AVG (as is also stated in the Explanatory Memorandum to the UAVG) leaves no room for national transitional law with regard to the substantive obligations of the Regulation.
        The Court of Appeal will therefore answer the present question on the basis of the GDPR. In this case, as the parties also believed, this will not lead to a different outcome than if a decision had been made on the basis of the Wbp.
       
      
      
        
          Applicable GDPR Provisions
        
       
      
    
    
      4.4
      In this case, the first question that arises is whether the listing of the search results is lawful. In this case, Article 6(1)(f) of the GDPR is important. This provides that the processing of personal data is only lawful if the processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where the interests or fundamental rights and freedoms of the data subject require the protection of personal data. outweigh those interests. Google has taken the position without being contradicted that it can in principle invoke the basis of a legitimate interest as referred to in this article for the processing of personal data in the context of its search function.
      
    
    
      4.5
      Subsequently, Article 17(1) of the GDPR grants the right to erasure (the right to be forgotten) under certain circumstances. In particular, for this case, the provisions under a (processing is no longer necessary), c (the data subject objects to processing in accordance with Article 21 paragraph 1 and there are no overriding legitimate grounds for the processing) and d (the personal data are unlawful processed) in certain cases of importance. It follows from paragraph 3 of this article that this right to erasure (among other things) does not apply insofar as processing is necessary for the exercise of the right to freedom of expression and information.
      
    
    
      4.6
      Article 21(1) of the GDPR provides that the data subject can object to the processing of personal data concerning him or her on grounds relating to his specific situation on the basis of Article 6(1)(f). The controller shall cease processing the personal data unless it can demonstrate compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject.
      
      
        
          Review of this case
        
       
      
    
    
      4.7
      It is undisputed that three of the ten URLs (numbered by [appellant] as 3, 5 and 6) no longer appear in a search for the name of [appellant]. Whether a number of the other search results no longer appear (as Google has argued and [appellant] has disputed) can, in view of the outcome of the assessment, be left open. Furthermore, it is undisputed that there is no question of special personal data in this case.
      
    
    
      4.8
      
        [Applicant]'s removal request must be seen as invoking Article 21(1) of the GDPR: in view of his specific situation and the disadvantages he experiences (including in finding work) of the references to the URLs, he wishes to remove those search results. 
        The Court finds it plausible that [appellant] experiences disadvantages from the search results. He has trouble finding publishers who want to publish his work and the search results have also contributed to a negative reaction when applying for jobs (as a teacher). His interest in removal is thus given. Google may therefore (see Article 21 (1) GDPR) only disregard [appellant's] request for deletion if it demonstrates compelling legitimate grounds for the processing that outweigh the interests, rights and freedoms of [appellant]. Google has sufficiently substantiated that there are compelling legitimate grounds for processing, which lie in the public's right to find and receive information and Google's own interest in providing information (also related to its freedom of enterprise). Furthermore, she has also made it sufficiently clear that the grounds put forward by her outweigh the interests, rights and freedoms of [appellant]. With regard to the balancing of interests, the Court of Appeal concurs with (and refers to) the District Court's considerations under 4.15 to 4.17 inclusive. On appeal, [appellant] has not provided sufficient concrete evidence, which leads to a different conclusion. In short, it is particularly important that:
      
      - the content of the source pages to which the URLs refer do not relate to [appellant]'s private life, but to his professional conduct;
      - the Den Bosch Court of Appeal ruled in a civil procedure between [appellant] and [name1] (irrevocably) in 2013 that the use of a title where that [appellant] did not or did not yet accrue has become sufficiently plausible and that the same applies to whether or not to write a dissertation;
      - [appellant] has also failed to make clear in these proceedings that the content of the search results is (evidently) incorrect. In this context, the Court of Appeal also notes that [appellant] has not substantiated his statement that he has completed a master's degree in Social Sciences with a copy of a diploma (while Google has requested this) and that a letter from the computerization bank that he may use the title of doctorandus if substantiation is not enough. The same applies to the statement that he obtained his doctorate in the United States (which also lacks a diploma). The letter from Wageningen University that Prof. [name2] finds his dissertation extremely impressive does not provide sufficient evidence, especially because Google has pointed out several inconsistencies in that letter and has reasoned to doubt its authenticity. In the notice of appeal, [appellant] also stated that the Wikipedia site to which one of the URLs refers offers a heavily scrambled representation of the facts, but the court sees a descriptive representation of the conflict with critic [name1] and the procedures that follow. followed;
      - in view of his profession and the desire to publish or work as a teacher, the accusations of plagiarism and wrongful use of academic titles are still topical, a subject of social debate and of importance to potential employers and clients .
      
    
    
      4.9
      The court also notes that the fact that [appellant] himself contributes to keeping this public debate alive, for example by posting messages about [name1] and the dispute on social media and by sending e-mails about this subject to various parties involved. including newspapers and universities, one of the reasons is that the reporting to which the URLs point is still current. Contrary to what [appellant] claims, processing is therefore not longer than necessary. Article 17(1)(a) of the GDPR therefore also provides no basis for granting the deletion request.
      
    
    
      4.10
      What [appellant] has further argued cannot lead to the granting of his removal request. Because [appellant] has not presented sufficiently concrete facts that, if proven, could lead to a different opinion, the Court of Appeal also does not provide evidence.
      
    
  
  
    
      5 Conclusion
    
    
      The appeal fails, so the contested decision must be affirmed.
      As the unsuccessful party, [appellant] will be ordered to pay the costs of the appeal.
     
    
  
  
    
      6 The decision
    
    
      The court, deciding on appeal:
     
    
    
      confirms the contested decision of the District Court of Central Netherlands, location Utrecht, of 14 November 2018;
     
    
    
      orders [appellant] to pay the costs of the appeal, up to this judgment set by Google at € 714 for court fees and at € 2,228 for salary in accordance with the liquidation rate.
     
    
    
    
      This decision was made by Mrs. L.J. de Kerpel-van de Poel, H. de Hek and Chr.H. van Dijk, and was pronounced in the public hearing on 9 November 2021 in the presence of the Registrar.