Rb. Gelderland - AWB - 18 3073

RECHTBANK GELDERLAND Arnhem - AWB - 18 _ 3073
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Court:	RECHTBANK GELDERLAND Arnhem
Jurisdiction:	Netherlands
Relevant Law:	Article 6 GDPR Article 9 GDPR Article 49 WBP Article 8.a WBP
Decided:	19.12.2018
Published:	12.06.2020
Parties:
National Case Number/Name:	AWB - 18 _ 3073
European Case Law Identifier:	ECLI:NL:RBGEL:2018:5551
Appeal from:
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	Uitspraken (in Dutch)
Initial Contributor:	n/a

The Court granted the plaintiff 300 € as damages after a violation by his employer of the Dutch data protection law: the employer communicated sensitive data (pro justicia reports) to third parties without a legal basis.

English Summary

Facts

The employer communicated sensitive data (pro justicia reports) to third parties without a legal basis and asked for damages. These were refused by the employer in the first place.

Holding

The court order the employer (the Minister of Justice) to pay 300 # of damages for violation of the data protection legislation, considering that the privacy-sensitive personal data have ended up with a small group of professionals, i.e. employees and members of the Disciplinary Board, and that they have a duty of confidentiality by virtue of their position. This does not detract from the fact that the plaintiff's privacy has been violated and that this has understandably been perceived by the plaintiff as unpleasant and disadvantageous. All things considered, the court deems compensation of €300 to be fair.

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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.

Administrative law

Case number: AWB 18/3073

judgment of the single chamber of 19 december 2018
in the business between

[Plaintiff A] , living at [A] , plaintiff,
and

the Minister for Legal Protection in The Hague, defendant.
Process
In a letter dated 4 February 2018, the plaintiff wrote to the director of the Pieter Baan Centre.

(hereinafter: SPC) a claim for compensation as referred to in Article 49,

first and second paragraphs of the Personal Data Protection Act (Wbp).

By decision of 13 March 2018, the defendant rejected the application.

By decision of 17 May 2018 (the contested decision), the defendant dismissed the claimant's objection.

The plaintiff lodged an appeal against the contested decision.

The hearing took place on 10 December 2018. Plaintiff appeared at the hearing. The defendant was represented by F. Boone, who works for the Judicial Institutions Department of the Ministry.

Considerations
1.1
First of all, the court assesses whether the plaintiff is justifiably exempted from the payment of court fees. If the levying of the court fee owed by law makes it impossible or extremely difficult for the person seeking justice to make use of a procedure under administrative law, it is assumed that the person concerned is not in default of payment of court fee, as referred to in Article 8:41(6) of the General Administrative Law Act (Algemene wet bestuursrecht, Awb).

1.2
This shall be the case if the person seeking compensation demonstrates that he or she has a net income of less than 90% of the (maximum) assistance standard applicable to a single person and that he or she does not have assets. The period during which the amount of the income is assessed shall commence after the Registrar has first informed the claimant of the chargeability of the Court fee and shall end on the date on which the Court fee must be paid at the latest. On the latter date the income must therefore be less than 90 per cent of the social assistance standard and the person concerned has no assets.

1.3
The plaintiff has argued that he was detained during the aforementioned period, that he had no income and that he did not have any assets at his disposal. On the basis of this, the District Court is of the opinion that the plaintiff is justifiably exempted from payment of court fees.

2.1
Pursuant to Section 51 of the General Data Processing Implementation Act (Uitvoeringswet Algemene Verordening Datsverwerking (AVG))1, read in conjunction with Section 99(2) of the AVG, the Wbp was repealed on 25 May and the AVG entered into force on that date.

2.2
Section 48, tenth paragraph, of the AVG Implementation Act, insofar as relevant here, stipulates that legal proceedings based on Section 49 of the Wbp, which are already pending before the court at the time this Act comes into force, are governed by the law applicable prior to the entry into force of this Act. Since the court received the notice of appeal from the plaintiff on 14 May 2018, the Wbp applies in these proceedings.

3. It has been established that, without the knowledge and without the consent of the plaintiff, the director of the RPC, by letter of January 15, 2018, provided (draft) pro-judicial reports on the plaintiff to the Regional Disciplinary Board for Health Care in Zwolle (further: the Disciplinary Board). These reports contained strictly confidential personal data of the plaintiff.

In the opinion of the District Court, the defendant has acted in violation of Section 8, opening words and part a, of the Wbp. In view of Section 49(1) of the Wbp, this means that the relevant condition for the application of Section 49 of the Wbp has been met.

4.1
The next question to be answered is whether the claimant has suffered damage.

4.2
With reference to Section 6:106(1)(b) of the Dutch Civil Code, the plaintiff has primarily taken the position that he has been harmed because he has been harmed in another way in his person, i.e. by the violation of his privacy. In the alternative, the plaintiff has argued that he has been harmed in his honour and good name. That is why, according to the claimant, there is a claim for damages on an equitable basis.

5.1
In the opinion of the District Court, the plaintiff's privacy has been violated because reports about the plaintiff have been sent to the Disciplinary Board and the strictly confidential personal data contained therein have ended up with employees and members of the Disciplinary Board. In this respect, plaintiff has rightly pointed out that the claim for compensation does not require psychological damage.

The basis for compensation primarily invoked by the plaintiff applies. In view of this, the basis put forward by the plaintiff in the alternative no longer needs to be discussed. Therefore, the Court is not entitled to discuss the plaintiff's view that the defendant intentionally sent the reports to the Disciplinary Board.

5.2
The foregoing means that pursuant to Section 49(2) of the Wbp, plaintiff is entitled to compensation for damages to be determined in fairness.

5.3
For the sake of completeness, the District Court notes that there is no situation as referred to in Section 49(4) of the Wbp. There is no reason to adjudicate that the damage cannot be attributed to the Respondent, because the Respondent has acknowledged that the Wbp has been breached and the Respondent has even tried to rectify the error by retrieving the reports sent.

5.4
The appeal is well-founded. The District Court will set aside the contested decision and provide for the case itself by revoking the primary decision in application of Section 8:72(3)(b) of the Awb and by determining that the defendant shall pay damages to the claimant.

6. With regard to the amount of the damages to be determined, the Court deems it important that the privacy-sensitive personal data have ended up with a small group of professionals, i.e. employees and members of the Disciplinary Board, and that they have a duty of confidentiality by virtue of their position. This does not detract from the fact that the plaintiff's privacy has been violated and that this has understandably been perceived by the plaintiff as unpleasant and disadvantageous. All things considered, the court deems compensation of €300 to be fair.

7. The court will order the defendant to pay the costs of the proceedings incurred by the claimant. The court sets these costs at € 20.40 on the basis of the Decree on Procedural Costs of Administrative Law (Besluit proceskosten bestuursrecht). These are the travel costs of public transport second class incurred by the claimant to attend the hearing. The District Court has not found any other costs eligible for reimbursement.

Decision
The court:

-
declares the appeal well-founded;

-
Annuls the contested decision;

-
revokes the primary decision;

-
provides that the defendant shall pay damages of €300 to the plaintiff;

-
provides that this judgment shall take the place of the annulled decision;

-
orders the defendant to pay the costs of the proceedings of the plaintiff in the amount of € 20.40.

This judgment was given by D.J. Post, judge, in the presence of

Mr. M.W. Bolzoni, court clerk.

The decision was publicly pronounced on: December 19, 2018