GHAL - 200.324.018/01

GHARL - 200.324.018/01
Court:	GHARL (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 15 GDPR Article 85 GDPR art. 43 UAVG
Decided:	25.06.2024
Published:	02.07.2024
Parties:	AVROTROS
National Case Number/Name:	200.324.018/01
European Case Law Identifier:	ECLI:NL:GHARL:2024:4238
Appeal from:	Rb. Midden-Nederland 536914
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	Rechtspraak.nl (in Dutch)
Initial Contributor:	fb

A court ruled that the processing of data related to the moderation of a forum managed by a television broadcaster falls into the “journalistic exception” under Article 85 GDPR. Therefore, the data subject cannot exercise their right of access regarding this data.

English Summary

Facts

The controller is a is a Dutch radio and television broadcaster. On its website it offers a forum called “Radar”, where people who had signed up can post articles and reply to other people’s posts. The users must comply with some conditions of use, called “Huisregels” (House rules) and compliance is monitored by the moderators of the forum.

The data subject has been participating in the forum since 2006. After being banned for the violation of the house rules, the data subject filed an access request. The controller did not act on this request.

Therefore, the data subject sued the controller before the District Court Midden-Nederland, location Utrecht (Rechtbank Midden-Nederland, locatie Utrecht), asking the court to order the controller to comply with the access request and provide him a copy of his information relating to the violation of the house rules.

On 4 January 2023, the court stated that the controller could not rely on the so called “journalistic exception” under Article 85 GDPR but ruled that it had already sufficiently complied with the access request.

Both the data subject and the controller appealed the decision before the Court of Appeal of Arnhem-Leeuwarden, location Arnhem (Gerechtshof Arnhem-Leeuwarden, locatie Arnhem). The data subject argued that he has the right to access his data, since the information about his moderation process does not fall under the journalistic exception. The controller that the data subject cannot invoke the right to access in this case and that this exception applies, since Radar has fulfilled the role of public watchdog for many years and the forum has the purpose of providing inputs for the TV programmes broadcast by the controller.

Holding

Firstly, the court recalled that the purpose of the right of access is to enable the data subject to acquaint himself with the personal data collected about him and to check whether those data are accurate and have been processed lawfully.

Secondly, the court noted that Article 85 GDPR provides that Member States shall reconcile by law the right to protection of personal data with the right to freedom of expression and information, including the processing for journalistic purposes. To this purpose, the relevant national law is Article 43 of the GDPR Implementation Act (Uitvoeringswet Algemene verordening gegevensbescherming – UAVG), which provides that Article 15 GDPR shall not apply to the processing of personal data exclusively for journalistic purposes.

The court recalled that the CJEU had ruled that a processing can be considered for journalistic purposed, and therefore Article 85 GDPR applies, only if the sole purpose of the processing is the disclosure to the public of information, opinions or ideas (see C-345/17, Buivids, para. 59; C 73/07, Satamedia, para. 62).

The court held that the forum is an integral part of Radar’s entire journalistic platform and that the processing of personal data on the forum cannot be viewed separately from the journalistic purposes served by the controller with its TV programmes. In other words, the forum and the other products managed by the controller are so closely linked that the sole purpose of the whole set of journalistic activities is the disclosure to the public of information, opinions and ideas.

As for moderation, the court ruled that it equally serves the public exchange of information, data and ideas. For example, the deletion of an offensive message is necessary to protect the freedom of expression of forum users among themselves.

Therefore, the court set aside the data subject’s appeal and upheld the controller’s one.

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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.

Pronunciation
COURT OF APPEAL ARNHEM-LEEUWARDEN

location Arnhem

civil law department

court case number 200.324.018

(case number Central Netherlands court, location Utrecht 536914)

decision of June 25, 2024

regarding

[applicant],

living in [place of residence1],

applicant in the principal appeal,

defendant in the cross-appeal,

hereinafter: [the data subject],

appeared in person,

in return for:

the association AVROTROS,

located in Hilversum,

defendant in the principal appeal,

applicant in the cross-appeal,

hereinafter: Avrotros,

lawyer: Mr. H.A.J.M. from Kaam.
1 The course of the appeal procedure
1.1

[the person concerned] has appealed against the decision of January 4, 2023 that the Central Netherlands District Court, Utrecht location, made between the parties. The course of the proceedings on appeal is evident from:

    -

    the notice of appeal with appendices 1 to 13 and the documents of the proceedings before the court;
    -

    the statement of defense on appeal also containing a cross-appeal with appendices 1 to 6;
    -

    the statement of defense in cross-appeal, also containing an addition to the notice of appeal on appeal, also containing a reduction of the claim with appendices 14 and 15;
    -

    the message from Avrotros of April 5, 2024 with appendices 7 and 8;
    -

    the correspondence between the parties and the court, including that regarding the size of the procedural documents and the duration of the speaking time.

1.2.

The oral hearing took place on April 16, 2024. An official report was drawn up and added to the file. The court then made an order.

2. The heart of the matter
2.1

[the data subject] has requested Avrotros for access to his personal data that Avrotros has processed with regard to violations of the house rules by him as a user of the Radar forum. Avrotros did not comply with that request.
2.2

[the person concerned] has requested the court to order Avrotros to provide him with a copy of, in short, all information relating to violations of the house rules by him, and the other information referred to in Article 15, paragraph 1, under a to h GDPR. The court rejected Avrotros's appeal to the so-called journalistic exception and lack of interest/abuse of rights, ruling that Avrotros has already sufficiently complied with the request for access to the requested personal data with the overviews it provided and has Avrotros condemns the information as described in Article 15 paragraph 1 (a) to (h) of the GDPR to be provided to [the data subject], and has rejected the additional or otherwise requested.
2.3

[the person concerned] has appealed and has amended his request. Avrotros has filed a cross-appeal. The intention of [the person concerned]'s appeal is that he is (still) provided with the information he requests, and the information that he believes he has not yet received or the information for which is incorrect. The intention of Avrotros' appeal is, among other things, that the court will rule that [the person concerned] cannot invoke the right of inspection.
3 The facts
3.1

The court bases itself on the facts as described below and further as described in legal considerations 2.1 to 2.7 of the contested decision.
3.2

Avrotros offers a forum on its website under the name 'Radar forum' (hereinafter: forum). On the forum, people who have registered can post articles (so-called topics) and respond to articles/reactions from others. Users of the forum must adhere to the 'House Rules and Terms of Use' (hereinafter: the House Rules). The forum is managed and moderated by moderators (hereinafter: the Moderator).
3.3

[the person concerned] has been participating in this forum since 2006 under the profile '[profile name]'. He has since posted almost 22,000 messages on the forum. Over the years, messages from [the person concerned] on the forum have been removed by the Moderator. On February 3, 2022, he was given a one-month 'ban' for arguing with another participant.
3.4

On appeal, [the data subject] wants Avrotros to provide him with the personal data that he requests and that was not given to him. [the person concerned] also believes that the overview of the information as described in Article 15 paragraph 1 (a) to (h) of the GDPR, which Avrotros has sent to him in the meantime (after the court ruling), is incorrect and incomplete.
3.5

Avrotros again invokes the journalistic exception on appeal, and believes that [the person concerned] is abusing the right of access and has no interest, and that she has already complied with the request with the overviews provided.
4 The judgment of the court
4.1

The court will decide that Avrotros' appeal to the journalistic exception is successful, so that the contested decision must be annulled. Below, the court explains how it reaches its decision.
4.2

The access request from [the data subject] must be assessed based on the rules of the General Data Protection Regulation (GDPR) and the GDPR Implementation Act (UAVG). The right of access is detailed in Article 15 GDPR and is intended to enable the data subject to take note of the personal data collected about him and to check whether that data is correct and has been processed lawfully. There is no dispute between the parties that personal data of [the data subject] is processed by Avrotros on the forum and when moderating messages on the forum, and the court agrees with this (the information can be attributed to the person of [the data subject] reduced).1
4.3

Article 85 GDPR requires Member States to legally reconcile the right to the protection of personal data with the right to freedom of expression and information, including processing for journalistic purposes. Member States shall establish exceptions or derogations from (chapters of) the GDPR if these are necessary to reconcile the right to the protection of personal data with the freedom of expression and information. Article 43 UAVG stipulates that most of the UAVG and parts of the GDPR, including the right of access, do not apply to, insofar as relevant here, the processing of personal data for “exclusively journalistic purposes.” According to the CJEU, this is the case “if the sole purpose of the processing is to communicate to the public information, opinions or ideas. It is up to the national court to assess whether this is the case.”2Avrotros' most far-reaching defense is that [the data subject] is not entitled to access because this journalistic exception applies.
4.4

The request for access from [the data subject] relates to the moderation of the forum. He asks for a copy of all processed personal data relating to violations of the House Rules “committed by [the person concerned]” (the court understands: which, according to the Moderator, were committed by [the person concerned]). [the person concerned] believes that he should not tolerate the Moderator's decisions to remove his messages (for example because they are 'off-topic') and the one-month 'ban' imposed on him in 2022 for violating the forum's House Rules and the reporting thereof by Avrotros must be able to check for accuracy and legality, and that moderation falls outside the journalistic exception. The court does not follow him in this.
4.5

The court first notes that the forum is an integral part of Radar's entire journalistic platform. As Avrotros has reasoned, the television program Radar has for years fulfilled the role of 'public watchdog' that provides critical, warning and information about questionable practices against consumers. The broadcasts often have a social impact and can lead to parliamentary questions and action from the supervisory authority. Various products have been added to the television broadcasts over the years, such as the Radar website, an Instagram page, a Tiktok page, a (research) panel, and the forum. The forum is an online platform where consumers can ask questions, exchange knowledge and experiences (problems, complaints), and share information. Companies and institutions can also participate in the discussions (for example with a webcare account), answer questions and provide text and explanations. In this way, the forum also provides current input for, for example, the television program or for articles on the Radar website and is in line with the aim of the entire platform to provide information and offer protection to consumers (of which Avrotros stated in the documents and at the hearing has given a number of examples at the court, such as companies that use extortionate fines or aggressive sales techniques). The fact that the forum fulfills these functions is also not in dispute between the parties.
4.6

Unlike the court, the court is of the opinion that the processing of personal data on the forum cannot be seen separately from the journalistic purposes that Avrotros serves with the Radar program and the other additional products and the overall contribution thus made to the public debate. The fact that Avrotros is 'merely' the hosting provider of the forum and does not itself make any journalistic contributions to it, as the court considered, does not mean that the forum is not a journalistic activity. Offering a discussion platform such as the forum can, in combination with other journalistic activities, play an important role in promoting an open discussion and the exchange of ideas regarding topics of social importance.3 In the opinion of the court, the activities of Avrotros in the context of the Radar program and the associated products such as the forum are so closely intertwined that the overarching set of journalistic activities has the sole purpose of communicating information, opinions and ideas to the public.
4.7

Moderation also serves the public exchange of information, data and ideas. This means that compliance with the House Rules for users of the forum as a public discussion place on consumer problems is monitored by or on behalf of Avrotros. Without moderation, there is also a chance that users will no longer dare to post on the forum for fear of reactions from others. For example, on the basis of the House Rules, the Moderator can intervene not only if a message is 'off-topic', but also, for example, if contributions are being made fun of or provoked towards fellow forum users. In this context, processing personal data (behind the scenes), for example removing a message that is offensive or otherwise does not serve the substantive discussion, is necessary to protect the freedom of expression of forum users. The court agrees with Avrotros that excluding the moderation function from the journalistic exception would also have a 'chilling effect' on freedom of expression. Not only because contributions on the forum would then move from content to discussions about moderation, but also because users would then become more reluctant to contribute to the forum or report to the editors, because they have to take this into account in a discussion to be involved about moderation. The fact that moderation in itself does not amount to expressing an opinion does not mean that this is not necessary to ensure that the forum remains accessible to expressions by users, whose opinions may also be contradictory. All this means that there is a processing of personal data for exclusively journalistic purposes within the meaning of Article 85 GDPR in conjunction with Article 43 UAVG, to which the right of access does not apply.
4.8

In addition to the foregoing, [the person concerned] stated during the oral hearing at the court that he does not consider himself bound by the (current) House Rules of the forum. The court deduces from its statements that [the person concerned] in particular does not accept that the Moderator determines whether he has violated the House Rules, and wants to check how the moderation of his contributions relates to the moderation of contributions from other (frequent) users from the forum. This is an additional indication that the aforementioned 'chilling effect' would occur here.
4.9

Now that Avrotros' appeal to the journalistic exception is successful, this means that [the person concerned] is not entitled to access. In this state of affairs, the contested decision cannot be upheld and his requests will still be rejected.
5 Conclusion
5.1

Ground I of the cross-appeal succeeds. The contested decision will be annulled. The court will not deal with the other grievances (in incidental and principal appeal).
5.2

As the unsuccessful party, [the person concerned] will be ordered to pay the legal costs. Contrary to what [the data subject] argues, Article 47 of the Charter of Fundamental Rights of the European Union in conjunction with (now) Article 79 of the GDPR does not prevent this. This is not a levy for an administrative appeal process that incurs costs in addition to the costs for judicial relief, which the CJEU had in mind in the Puskar case.4 The order for costs in accordance with the liquidation rate in civil cases in general sentence cannot be regarded as excessive or an obstacle to effective access to justice. The court nevertheless takes into account that [the person concerned] is litigating in person (Article 35(4) UAVG). The court sees this as reason to limit the order for costs to the court fee that Avrotros has paid.
6 The decision

The court, deciding on appeal:
6.1

annuls the contested decision of the Central Netherlands District Court, Utrecht location of January 4, 2023;
6.2

rejects the requests of [the data subject];
6.3

orders [the person concerned] to pay the costs of Avrotros, set at € 783 for court fees until this ruling;
6.4

declares the conviction provisionally enforceable.

This decision was given by Mrs. M.P.M. Hennekens, L. Janse and G.R. den Dekker, and was pronounced in public in the presence of the clerk on June 25, 2024.

1Cf. (among others) CJEU 20 December 2017, ECLI:EU:C:2017:994 (Nowak).

2 Cf. CJEU 16 December 2008, ECLI:EU:C:2008:727 (Satamedia); CJEU 14 February 2019, ECLI:EU:C:2019:122 (Buivids).

3 Cf. ECHR 7 March 2022, no. 39378/15 (Standard Verlags/Austria no. 3).

4 CJEU 27 September 2017, ECLI:EU:C:2017:725 (Puskar), paragraphs 75 and 76.