Rb. Noord-Holland - 8117599 CV EXPL 19-16066

Rb. Noord-Holland - 8117599 CV EXPL 19-16066

Court:	Rb. Noord-Holland (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 5(1)(b) GDPR Article 5(1)(a) GDPR Article 6(1)(f) GDPR Article 14(5)(b) GDPR Article 14(5)(a) GDPR Article 33 GDPR Article 34 GDPR Article 82 GDPR
Decided:	28.10.2020
Published:	23.11.2020
Parties:	Royal Schiphol Group N.V.
National Case Number/Name:	8117599 CV EXPL 19-16066
European Case Law Identifier:	ECLI:NL:RBNHO:2020:8537
Appeal from:
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	de Rechtspraak (in Dutch)
Initial Contributor:	n/a

The District Court of North Holland (Rb. Noord-Holland) held that Schiphol violated the GDPR by not removing the claimant’s picture from its servers, not informing the claimant of this and using the picture on a website. The claimant was awarded € 1500 in damages.

English Summary

Facts

The Foundation is an organisation that does health care work on an unnamed continent. Claimant is a professional midwife in an undisclosed country; she followed a three-year training as a midwife with the support of the Foundation.

In 2016, Schiphol and the Foundation signed a sponsorship deal, which, among others, allowed the Foundation to place its advertising in the terminals of Schiphol. Foundation shared the ad creatives with Schiphol, who then stored them on its servers and displayed them on the billboards. Picture of the claimant was used for one of those ad creatives and it has been displayed on one of the screens in Schiphol for approximately a year before the claimant informed the Foundation that she didn’t want them to use her portrait for the advertising in Schiphol. Claimant and the Foundation reached a agreement and the Foundation subsequently informed Schiphol that the picture in question could not be used anymore. Schiphol removed the portrait from its billboards.

However, some time after this, Schiphol published an article on Platform dedicated to marketing, media and communications for professionals in this area. The article was about the sponsorship agreement between Schiphol and the Foundation and it included the picture of the claimant. On 29th of January the Foundation informed Schiphol that the picture should not have been used. Schiphol immediately requested the Platform to delete the picture and replace it with another picture.

The article with the claimant’s picture was seen approximately 73 times and was also shared via Twitter.

On 8 May 2019 the claimant’s lawyer wrote to Schiphol requesting a conversation about a compensation from Schiphol to claimant. The parties did not reach an agreement. Schiphol offered claimant a € 1500 compensation twice, claimant rejected the offer.

Dispute

According to the claimant, Schiphol has violated her portrait rights and her right to privacy by publishing her picture and other personal data visible on the picture (name on a name tag and profession which is deducible from the uniform she is wearing on the picture). Claimant thinks that she is entitled to a € 23000 compensation: € 5000 for immaterial damages and €18000 for material damages. More specifically, according to the claimant, Schiphol has violated the GDPR and Article 8 of the European Convention on Human Rights.

Her portrait constitutes personal data under GDPR, the publication of her portrait constitutes a personal data breach. According to the claimant, the processing of her personal data also didn’t comply with Articles 5 and 6 of the GDPR. In particular, there is a breach of the principles of purpose limitation, and integrity and confidentiality. Furthermore, the claimant should have made her aware of this data processing pursuant to Article 14. Data breach should have also been notified to the DPA and the claimant pursuant to Articles 33 and 34 due to the high risks to her rights and freedoms.

Claimant did not want to be associated with a company like Schiphol, and the use of her portrait, name and profession may give an impression that she earned a lot of money, which can have consequences for her social life and security in her country. The claimant pointed to another court case in the same country where damages were awarded to a person whose picture was used without her permission.

Schiphol disagrees with the claimant. Claimant’s pictures, including the one that is subject of the hearing, can easily be found via Google Image Search, which reduces the impact of the article on her private life. The claimant is a face of other similar campaigns, so it cannot be seen that she run a greater risk of being confronted with a local community in her country. Schiphol argues that it’s hard to imagine that the publication on a Dutch Platform in Dutch language meant for Dutch audience that was visible for 23 hours, would be seen by the people in her local community.

Schiphol doesn’t agree with violation of article 6 of the GDPR: there is legitimate interest for the processing of the personal data. Claimant’s portrait was already widely available, so there is no additional violation of her rights and freedoms. Furthermore, Schiphol claims journalistic exception according to Article 43 of the GDPR Implementation Act and Article 85 of the GDPR, which means that information obligations do not apply. Another reason why Article 14 should not apply is the difficulty with informing the claimant: Schiphol’s marketing department did not have her contact details. Lastly, Schiphol claims that there was no data breach because there was no breach of security. Insofar as there would have been a breach, it would not pose high risks to the rights and freedoms of the claimant, meaning that there is no breach notification obligation.

Holding

Since it was no longer allowed for Schiphol to use the claimant’s picture, the publishing of the that picture does constitute a breach of security, which accidentally lead to unauthorised access to data processed by Schiphol. The Court also agrees with the claimant that the principles in Articles 5(1)(a) and Articles 5(1)(b) have indeed been violated since the claimant was not aware of the publication and it went outside of the context of the initial processing (campaign of the Foundation).

Schiphol cannot rely on legitimate interest. The fact that the claimant’s picture is widely visible and available doesn’t mean that Schiphol automatically has legitimate interest to use it for an article. After all, the article was not about the claimant, so her picture was not necessary in this context.

Schiphol also cannot rely on the exception to the information obligation as per Article 14(5)(a) and Articles 14(5)(b). The fact that Schiphol’s marketing department didn’t have the claimant’s contact details is Schiphol’s own risk. Moreover, claimant should have been informed that her personal data was still being processed after they were notified that she no longer wanted her portrait to be used by Schiphol in 2018.

Schiphol also cannot rely on journalistic exception.

The Court found that the claimant failed to sufficiently state the increased risks to her rights and freedoms. The picture of the claimant is known from the one-year long campaign in Schiphol Airport, but also from other campaigns. The picture was visible on the Platform for less than 24 hours, it was published on a Dutch website in the Dutch article with the claimant’s name appearing on the picture, but not in the text of the article. Which means, it cannot be concluded that this article became known to the local community in her country. Violation of Articles 33 and 34 of the GDPR is not found.

In terms of the size of the compensation, the Court ruled that the €23000 amount was not properly justified by the claimant. The court case the claimant was using to demonstrate the possible social and security consequences, was entirely different. In the present case the claimant’s picture has already been used for the extensive campaigning; it was available on the Dutch site aimed at Dutch audience for less than 24 hours; claimant’s name cannot be found in the text of the article; Schiphol reacted immediately and took steps to remove the picture.

Schiphol has violated GDPR by not removing claimant’s picture from its servers in 2018, not informing the claimant of this and using this picture to illustrate the article on a media and communications website in 2019. By doing so, Schiphol violated privacy of the claimant and her commercial interests. The claimant was awarded €1500 in damages.

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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 in the case of:

[claimant],

residing in [place] ([country]),

demanding party,

hereinafter to be named [claimant],

authorized representative: mr. LJ van Manen,

against

the limited liability company

Royal Schiphol Group NV,

having its registered office and office at Schiphol,

defendant party,

hereinafter referred to as: Schiphol,

authorized representative: mr. AF Fernhout.

1 The course of the proceedings

1.1.

[Claimant] filed a claim against Schiphol by summons of 15 October 2019. In the case of an incidental claim, Schiphol has demanded security for the legal costs ex 224 Rv. After the parties responded to each other's assertions in the incident, the Subdistrict Court dismissed this incidental claim by judgment of 1 April 2020. Schiphol subsequently replied in writing in the main action.

1.2.

[Claimant] responded to this in writing, after which Schiphol responded in writing.

1.3.

Subsequently, judgment was determined.

2 The facts

2.1.

The [name] Foundation (hereinafter [the Foundation]) is an organization dedicated to health care in [Continent]. [the Foundation] trains care providers in [Continent], offers basic care and provides information.

2.2.

[Claimant] is a midwife by profession in [country]. With the help of the [Foundation], she followed a three-year midwife training course. [Claimant] has worked for many years to draw attention to the difficult circumstances under which women in [country] have to give birth.

2.3.

At the end of 2016, Schiphol concluded a sponsorship agreement with [the Foundation] for a period of approximately three years (hereinafter: the sponsorship agreement). This sponsorship consisted of several elements, including providing free publicity in the terminals of Schiphol during those three years. Expressions of [the Foundation] were displayed on large screens in these terminals, which expressions [the Foundation] delivered to Schiphol as a PDF file (hereinafter: artwork).

2.4.

The artworks supplied by [the Foundation] have been stored by Schiphol on its servers and published on its billboards. Part of these artworks was the photo below of [claimant], with accompanying text. This artwork was supplied by [the Foundation] in 2017 and was depicted on a large screen in the B pier of Schiphol for over a year.

[Photo 1]

2.5.

At some point in 2018, [claimant] indicated to [the Foundation] that she wanted the use of her portrait to be discontinued at Schiphol. [the Foundation] and [Claimant] concluded a settlement agreement on this on 21 November 2018 and [the Foundation] subsequently informed Schiphol that the artwork in question with the photo of [Claimant] could no longer be used. Schiphol subsequently removed the artwork in question from its billboards.

2.6.

On [date] at [time] on the website of [the Platform], a platform that deals with marketing, media and communication and focuses on parties working in these segments, an article from Schiphol, provided by Schiphol media, posted about the sponsorship agreement between Schiphol and [the Foundation]. The article is entitled “[title]”. The article describes the goal of the collaboration: to provide medical training to some 4,000 people in [Continent], giving approximately two million people access to healthcare. The article also states that advertisers at Schiphol have an audience of millions. At the bottom of the article it is stated that Schiphol has been regarded as an important international hub for decades. With this article is the following photo of [Claimant] (hereinafter also:the photo of [claimant]) posted:

[photo 2]

2.7.

On January 29, 2019, the Schiphol Foundation pointed out that the photo of [Claimant] should not have been used. Schiphol immediately requested [the Platform] to remove the photo of [claimant]. On [date] at [time] the photo of [claimant] was replaced by the photo below:

[photo 3]

2.8.

As far as could be ascertained, the article with the photo of [claimant] had been viewed by approximately 73 people until the time of the removal of the photo. The article was also (partly automatically) shared via Twitter.

2.9.

At the beginning of May 2019, [claimant] and her lawyer became aware of the use of the photo of [claimant] on [the Platform] .nl. On 8 May 2019, [claimant] 's lawyer wrote to Schiphol with the request to enter into consultations about a form of compensation from Schiphol to [claimant]. Consultations were held by telephone and in writing, but the parties have not reached agreement. On August 5, 2019, Schiphol offered [claimant] an amount of € 1,500.00. Schiphol repeated this offer on 13 September 2019.

3 The progress

3.1.

[Claimant] claims - in summary - that the Subdistrict Court will rule in court that Schiphol has infringed its portrait rights and privacy by reproducing and publishing her portrait and other personal data visible on the portrait (name (name card) and appeal (depicted in uniform) and is liable for the damage it has suffered as a result and that the Subdistrict Court will order Schiphol to pay € 23,000 in damages (existing - if Dutch law applies) out of € 5,000 in immaterial compensation for violation of the privacy of [claimant] and € 18,000 in material compensation for violation of the commercial portrait right of [claimant] due to the redeemable popularity), to be increased with interest and costs.

3.2.

[Claimant] bases the claim - in brief - that Schiphol acted unlawfully towards it by violating its portrait right as laid down in Article 21 of the Copyright Act (hereinafter: Aw), in violation of the General Data Protection Regulation (hereinafter : GDPR) and to act in violation of Article 8 of the European Convention on Human Rights (hereinafter: ECHR). She argues that Schiphol has infringed its personality interests and its right to protection of its privacy. She also argues that there is a loss of control over her personal data. Insofar as the compensation offered by Schiphol (of € 1,500) must be regarded as a reasonable compensation, according to [claimant] it cannot heal the unlawful use of her portrait,now that privacy interests are also at issue in this case. [Claimant] argues in this regard that she did not want to be associated with a company such as Schiphol and that the use of her portrait, name and profession in [country] gives the impression that she would have earned a lot of money with the Schiphol, which leads to social and safety aspects in [country]. In that regard, she refers to a judgment of a court in [city] ([country]) of 22 April 2016 in a case of another [nationality] woman, whose photo was used in an advertising campaign in [country].She points out that that statement mentions that even people in the immediate vicinity of that woman had the impression that she had earned a lot of money from the campaign, as a result of which she had feared that people with less good intentions could be robbed or robbed, for which fear the woman was awarded damages against the person who had used her photo without her consent. [Claimant] states that, since she was not asked for permission in advance for the use of her photo, she was unable to prepare for these social and safety aspects. She emphasizes that if Schiphol had asked her prior permission to use her portrait, she would only have agreed to this commercial use of her portrait for a fee of € 23,000-. The serious adverse privacy aspects would then have been discounted in the amount of the compensation, according to [claimant]. In addition to violation of its privacy interests, [claimant] also violates its commercial interests because the publication on the website of [the Platform] detracts from the way in which [claimant] wishes to exploit its fame and redeemable popularity.

3.3.

According to [Claimant], a portrait, name and profession can be regarded as personal data within the meaning of Article 4 under 1 GDPR. According to [claimant] there has also been unlawful processing of personal data, a data breach, as referred to in Article 4 under 12 GDPR, in which it is stipulated that 'breach in connection with personal data' means a breach of security that accidentally or unlawfully leads to the destruction, loss, alteration or unauthorized disclosure of or unauthorized access to transmitted, stored or otherwise processed data. According to [Claimant], the processing of these personal data by Schiphol does not comply with Articles 5 and 6 GDPR.According to [Claimant], the bases for processing as referred to in Article 6 GDPR are lacking and, moreover, various parts of Article 5 GDPR have been violated, namely Article 5 paragraph 1 sub b (purpose limitation) and Article 5 paragraph 1 sub f (integrity and confidentiality). ). Moreover, on the basis of Article 14 of the GDPR, Schiphol should have informed [Claimant] that after March 2018 (when Schiphol was notified that the portrait of [Claimant] could no longer be used), its data was processed. Finally, on the basis of Articles 33 and 34 GDPR, the breach in connection with the personal data should have been reported immediately to the Dutch Data Protection Authority (hereinafter: the Dutch DPA) respectively [claimant],unless it was unlikely that the breach in connection with the personal data would entail a (high) risk to the rights and freedoms of [claimant], [claimant] still says.

4 The defense

4.1.

Schiphol disputes the claim. In summary, she argues the following. In the first place, according to Schiphol, in the settlement agreement of 21 November 2018 between [the Foundation] and [Claimant], [the Foundation] may have stipulated final discharge for the benefit of third parties with regard to the use of [Claimant] 's portrait. According to Schiphol, [plaintiff] is obliged to give openness about this on the basis of Article 21 DCCP. Now that [plaintiff] does not do this, Schiphol is frustrated in its defense and the claim must be rejected as insufficient and insufficiently substantiated. Schiphol further argues that there is no violation of Article 21 Aw because [plaintiff] has no reasonable interest in opposing publication of the photo on the basis of its portrait right.Schiphol points out that [plaintiff], as she puts it herself, has become widely known as 'the face of all midwives in [Continent]' and that persons who act in public must be more content with the press than 'ordinary' citizens. Schiphol emphasizes that the photo of [claimant] relates to her functioning as a midwife and, moreover, like similar photos of [claimant], can be found via Google Image Search on several websites accessible to a large relates to the privacy of [claimant]. Schiphol argues that the decision of the court in [place] ([country]) submitted by [plaintiff] relates to a completely different situation from the present situation.Schiphol argues that the question is whether people from the community of [Claimant] were able to take note of a Dutch-language message on a Dutch website, aimed at a Dutch public that was only visible for 23 hours. Moreover, [claimant] herself argues that her portrait has been used for several marketing campaigns, such as for commercial companies such as [company] and [bank]. Also in view of these campaigns, it cannot be seen that [plaintiff] runs a greater risk of being approached by her community than before as a result of this portrait publication on the website of [the Platform].Moreover, [claimant] herself argues that her portrait has been used for several marketing campaigns, such as for commercial companies such as [company] and [bank]. Also in view of these campaigns, it cannot be seen that [plaintiff] runs a greater risk of being approached by her community than before as a result of this portrait publication on the website of [the Platform].Moreover, [claimant] herself argues that her portrait has been used for several marketing campaigns, such as for commercial companies such as [company] and [bank]. Also in view of those campaigns, it cannot be seen that as a result of this portrait publication on the website of [the Platform], [plaintiff] runs a greater risk of being approached by its community than before.

4.2.

Schiphol further disputes that there has been a violation of the GDPR. It argued that it had a legitimate interest within the meaning of Article 6 (1) lit.f GDPR for the processing of the personal data at issue. In this context, it has argued that the use of the photo of [Claimant] in the article was in line with the purpose of the article: to provide a platform for [the Foundation]. Furthermore, according to Schiphol, there was no additional infringement of the rights and freedoms of [Claimant] as referred to in the GDPR, because her portrait was already well known, visible and available through various channels before publication on the website of [the Platform], including the campaign of [the Foundation] at Schiphol. Furthermore, Schiphol has invoked the journalistic exception of Article 43 of the GDPR Implementation Act (hereinafter:UAVG) and Article 85 GDPR argued that the information obligation of Articles 13 and 14 GDPR does not apply in this case. The message on the website of [the Platform] had a journalistic purpose, according to Schiphol. Schiphol also invoked the exception to the notification obligation in article 14, paragraph 5, sub a and b GDPR, stating that employees of the marketing department were not aware of the contact details of [claimant], so that it was impossible to provide information about the processing to [claimant]. Plaintiff], and that the portrait in question of [Plaintiff] was available in multiples on the Internet and [Plaintiff] was aware that Schiphol had used her portrait before. Schiphol has also contested that there has been a breach of personal data, a data breach,within the meaning of Article 4 sub 12 GDPR because there is no breach of security. Insofar as there is a data breach, according to Schiphol, it is not obliged to report this in the sense of Articles 33 and 34 GDPR. According to Schiphol, there is no question of a (high) risk to the rights and freedoms of [plaintiff].

4.3.

Finally, Schiphol is putting forward a defense against the amount of the compensation claimed.

5 The assessment

IPR

5.1.

Since [Claimant] lives in [country] and Schiphol is located in the Netherlands, the case has an international character and the questions about the jurisdiction of the Subdistrict Court and the applicable law must first be answered.

international jurisdiction

5.2.

As Schiphol is located in the Netherlands, the Dutch courts will, on the basis of Article 4 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I-bis Regulation, also known as the 'recast EEX Regulation).

applicable law

5.3.

Next, it will be discussed which law applies to the present dispute.

5.4.

[Claimant] bases its claims on unlawful acts by Schiphol. In Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) PbEG L 199/40 (hereinafter: the Rome II Regulation) ) Article 1, paragraph 2, opening words and under g provides that non-contractual obligations arising from an infringement of privacy or personality rights are excluded from the scope of the Rome II Regulation. [Claimant] 's claim is based on an infringement of her privacy and personality rights, so that the Rome II Regulation does not in principle apply to her claim. However, in article 10: 159 of the Dutch Civil Code (hereinafter:BW) provides that obligations which fall outside the scope of the Rome II Regulation and the applicable treaties and which can be regarded as unlawful acts are subject to the provisions of the Rome II Regulation mutatis mutandis. This means that the applicable law must be determined on the basis of the provisions of the Rome II Regulation.

5.5.

Article 4 (1) of the Rome II Regulation provides that the law of the country where the damage occurs is applicable, regardless of the country in which the event causing the damage occurred and regardless of the countries in which the indirect consequences of that event occur. . Accordingly, under that provision, [the law of [country]] would in principle apply. However, Article 4 (3) of the Rome II Regulation provides that if it appears from all the circumstances that the tort has a manifestly closer link with a country other than the country referred to in paragraphs 1 and 2, the law of that other country applies. Apparently closer link with another country could be based in particular on a pre-existing relationship between the parties closely related to the tort,like an agreement.

5.6.

The infringement at issue here arose because Schiphol still had a photo of [claimant] on its servers that it had received in the context of the sponsorship agreement with [the Foundation]. The photo obtained from [the Foundation] has been incorporated into an artwork of [the Foundation] for months, and has been visible at Schiphol Airport, in the Netherlands. The photo at issue in the present case was only visible on 28 and 29 January 2019 for a relatively short time (less than 24 hours) in a Dutch article on a Dutch website. The Subdistrict Court is of the opinion that, in view of all the circumstances, it is possible to speak of a closer relationship with the Netherlands than with [country] and that therefore Dutch law applies to this dispute.In addition, Schiphol agreed to the applicability of Dutch law in the statement of defense. Partly in view of the arguments of [Claimant], the Subdistrict Court is of the opinion that this results in a choice of law for Dutch law as referred to in Article 14 paragraph 1 of the Rome II Regulation.

progress

5.7.

The central question in these proceedings is whether Schiphol has infringed the portrait right of [claimant] by using the photo of [claimant] in the article about the sponsorship agreement between Schiphol and [the Foundation] on the website of [the Platform]. and to what extent [claimant] can oppose this. Another issue is whether Schiphol has acted in violation of the GDPR by using the photo of [claimant].

article 21 Rv defense

5.8.

In the first place, Schiphol argued in defense that the claim must be rejected as inadequate and insufficiently substantiated because [plaintiff] has not given sufficient disclosure about a possible discharge clause for third parties in the settlement agreement of 21 November 2018 between ] and [plaintiff]. Unlike Schiphol, the Subdistrict Court is of the opinion that [plaintiff] has given sufficient disclosure about this. After all, [claimant] has stated with reasons that the discharge only pertains to the use of the portrait of [claimant] up to the moment of signing the settlement agreement, on 21 November 2018, and that this is also customary and obvious, because otherwise the person portrayed or copyright holder would give unrestricted permission to the other party.Furthermore, [claimant] has argued in this regard that this is confirmed by the fact that it was [the Foundation] that, on January 29, 2019, asked Schiphol to remove the photo of [claimant] and that Schiphol also after contact with the (then, in 2019) lawyer of [the Foundation] has made it known that the use of the portrait of [claimant] was based on an error. It would have been for Schiphol Airport to further substantiate its defense against this motivated dispute. The fact that [plaintiff], who considers itself bound by the confidentiality agreed with [the Foundation], has not brought the settlement agreement into question does not affect this. Schiphol is not frustrated in its defense.on January 29, 2019, asked Schiphol to remove the photo of [claimant] and that Schiphol also made it known after contact with the (then, in 2019) lawyer of [the Foundation] that the use of the portrait of [claimant] was based on a mistake. It would have been for Schiphol Airport to further substantiate its defense against this motivated dispute. The fact that [plaintiff], who considers itself bound by the confidentiality agreed with [the Foundation], has not brought the settlement agreement into question does not affect this. Schiphol is not frustrated in its defense.on 29 January 2019, asked Schiphol to remove the photo of [claimant] and that Schiphol also made it known after contact with the (then, in 2019) lawyer of [the Foundation] that the use of the portrait of [claimant] was based on a mistake. It would have been for Schiphol Airport to further substantiate its defense against this motivated dispute. The fact that [Plaintiff], who considers itself bound by the confidentiality agreed with [the Foundation], has not brought the settlement agreement into question does not affect this. Schiphol is not frustrated in its defense.It would have been for Schiphol Airport to further substantiate its defense against this motivated dispute. The fact that [Plaintiff], who considers itself bound by the confidentiality agreed with [the Foundation], has not brought the settlement agreement into question does not affect this. Schiphol is not frustrated in its defense.It would have been important to further substantiate its defense against this motivated dispute. The fact that [Plaintiff], who considers itself bound by the confidentiality agreed with [the Foundation], has not brought the settlement agreement into question does not affect this. Schiphol is not frustrated in its defense.

portrait right, article 21 Aw

5.9.

[Claimant] has stated that Schiphol has acted in violation of Article 21 Aw. The basic principle is that the person who is depicted in a photo, without being instructed to do so, can oppose publication of that photo by the copyright holder or a third party on the basis of Article 21 Aw, if he or she has a reasonable interests, such as his or her right to privacy, the protection of his or her honor and reputation and / or a financial interest.

no permission

5.10.

If the person portrayed has given permission to publish the photo, he or she has thereby waived an appeal to Article 21 of the Aw. However, consent is only involved if the person portrayed has explicitly consented to the way in which the photo was published or should be deemed to have implicitly consented to it. Depending on the circumstances of the case, including the nature of the publication, the user of the photo will have to satisfy himself sufficiently that permission for the publication in question has indeed been given by the person portrayed.

5.11.

The documents show that [claimant] has not given permission for the use of her photo with the article on the website of [the Platform]. The circumstance that the photo of [claimant] was previously used for the [Foundation] 's advertising campaign at Schiphol does not make this any different. Certainly not now that [the Foundation] informed Schiphol during the sponsorship agreement that the artwork with the photo of [Claimant] could no longer be used and it was also [the Foundation] that pointed this out to Schiphol again on 29 January 2019. .

reasonable interest

5.12.

Subsequently, the question must be answered whether [plaintiff] has a reasonable interest as referred to in article 21 Aw to oppose publication of her photo with the article on the website of [the Platform]. Based on the Cruijff-Tirion judgment of the Supreme Court of 13 June 2013 (ECLI: NL: HR: 2013: CA2788), which is also cited by both parties, the Subdistrict Court takes the following as a starting point. A reasonable interest as referred to in Article 21 Aw can relate to both personal (privacy) interests and commercial interests. It follows from the right to respect for privacy, which in its content is partly determined by Article 8 ECHR, that if this right is infringed by the disclosure of a portrait,in principle, there is a reasonable interest of the person portrayed as referred to in Article 21 Aw, which opposes such disclosure. The assessment of whether disclosure is unlawful towards the person portrayed requires a consideration in the context of the right to privacy protected by Article 8 ECHR and the right to freedom of expression and freedom of information protected by Article 10 ECHR, which consideration, taking into account all the particulars of the given case, is intended to determine which of the interests involved is most important. The person of the person portrayed, the place and the manner of creation of the image, the nature and degree of intimacy in which the person portrayed is depicted, the character of the image, may be important in this consideration.the context of the publication, the correctness of the other information provided in the publication, as well as the social importance, news value or informative value of its disclosure. Also persons who are known or in the public eye may have legitimate expectations when it comes to respect for their privacy. The protection derived from Article 8 ECHR is furthermore not limited to private activities, but is also possible with regard to professional or business activities. The standard laid down in Article 21 Aw also means that persons portrayed do not have to allow their popularity acquired in the exercise of their profession to be commercially exploited by disclosing their portraits, without receiving any compensation for this.Sharing in the benefits of this exploitation is a reasonable interest within the meaning of Article 21 Aw.

5.13.

Insofar as it is aimed at the protection of privacy interests, the portrait right is a personality right to which, as a rule, considerable weight will be assigned. This applies especially to persons portrayed who are not publicly known, in the sense that in principle they do not have to tolerate the disclosure of their portrait. However, with regard to persons who are known for their professional practice, the disclosure of photographs relating to this professional practice and taken in places accessible to the general public is, to a certain extent, inherent in their professional practice and the awareness and interest of those involved. public. If the disclosure concerns the professional practice of a person known to be portrayed by it,therefore, as a rule, great weight is given to factors such as newsworthiness and information to the public in relation to its mere opposition to disclosure.

5.14.

Particularly with regard to persons who are known for their professional practice, commercial interests may be involved in the publication of their portraits. Such interests are also protected under Article 8 ECHR and can be involved in weighing up the right to freedom of expression and freedom of information protected under Article 10 ECHR. The weight of the commercial interest alleged by the person portrayed in a given case depends on the circumstances of the case. If, in the case of a person portrayed with redeemable popularity, there is only such an interest and there are no circumstances that justify disregarding that interest, then in the assessment whether a reasonable compensation has been offered may play an important role.What constitutes reasonable compensation in this regard will have to be determined on the basis of the circumstances of the case. In any case, the remuneration must do justice to the degree of popularity or fame of the person portrayed and must be in accordance with the value of the person's exploitation interest in the course of trade. If it is established or undisputed that reasonable compensation has been offered (and protection of privacy interests is not an issue), additional circumstances will in principle be necessary for the judgment that disclosure is unlawful towards the person portrayed.In any case, the remuneration must do justice to the degree of popularity or fame of the person portrayed and must be in accordance with the value of the person's exploitation interest in the course of trade. If it is established or undisputed that reasonable compensation has been offered (and protection of privacy interests is not an issue), additional circumstances will in principle be necessary for the judgment that disclosure is unlawful towards the person portrayed.In any case, the compensation must do justice to the degree of popularity or fame of the person portrayed and must be in accordance with the value of the person's exploitation interest in the course of trade. If it is established or undisputed that reasonable compensation has been offered (and protection of privacy interests is not an issue), additional circumstances will in principle be necessary for the judgment that disclosure is unlawful towards the person portrayed.In principle, additional circumstances will be necessary for the judgment that disclosure is unlawful towards the person portrayed.additional circumstances will in principle be necessary for the judgment that disclosure is unlawful towards the person portrayed.

5.15.

The Subdistrict Court is of the opinion that, in view of all the circumstances of the present case, [plaintiff] has a reasonable personality interest as referred to in Article 21 Aw to oppose publication of her photo with the article on the website of [the Platform], now that the use also falls to be regarded as use in an advertisement of the collaboration between Schiphol and [the Foundation]. Unlike Schiphol, the Subdistrict Court is of the opinion that the article on the website of [the Platform] does indeed have a commercial character, in the sense that - in view of the text and context of the article - it advertises for brand strategy and 'impact policy' and for Schiphol in general. That Schiphol (in any case:also) had commercial intentions with the article, which is confirmed in Schiphol's statement in the rejoinder that it currently no longer cooperates with [the Platform] because it has never been able to link turnover to the cooperation with [the Platform]. The fact that the article has informative value in addition to a commercial intention does not alter the above, since it is not the case that the photo of [plaintiff] has such an informative value about the subject of the article that it was precisely this photo that had to be used. Since it concerns the use of a portrait without permission in an advertisement, [claimant] has, in the opinion of the subdistrict court, without any doubt a reasonable (personality) interest to oppose the use of her portrait in support of this commercial advertisement. .After all, as the person portrayed by the public, [plaintiff] will be associated with the relevant product or service, in this case Schiphol and the 'impact policy' applied by Schiphol, whereby the public will generally - and usually rightly - assume that the use of the portrait will not have taken place without permission from the person portrayed and the inclusion of the portrait in the advertisement will be regarded as a sign of public support of the product or service by the person portrayed. On these grounds, using a portrait in such a way can in principle be regarded as an infringement of the person's privacy (contrary to Article 8 ECHR). This means that in principle there is a reasonable interest as referred to in Article 21 Aw,that opposes this disclosure (cf. HR 2 May 1997, ECLI: NL: HR: 1997: ZC2364, NJ 1997,661, ground 3.3, the Disco Dancer judgment). The fact that the photo of [claimant] was taken of [claimant] in the exercise of her profession, and not in her private sphere, does not alter this. If, furthermore, a balance is made between the interests of [Claimant] on the basis of Article 8 ECHR and Article 10 ECHR, the freedom of expression, the fact that this is an advertisement will weigh heavily in this case. All the more so now that the documents show that [claimant], after her photo had been used for months as an eye-catcher of the [Foundation] 's campaign at Schiphol, her (visible) cooperation in the [Foundation]' s campaign was still ongoing during has ended the duration of the sponsorship agreement with Schiphol, after which the photo was no longer used in this campaign.By placing the photo with the article on the website of [the Platform] in January 2019, [plaintiff] could nevertheless be associated with this campaign again, and this association was, as it were, 'revived'. In this context, the Subdistrict Court also considers it important that this is a photo in which [plaintiff] is central and - partly due to the visibility of her name and profession - is recognizable; it is not a photograph of, for example, a street scene on which [plaintiff] more or less happens to appear among various others and / or on which she is hardly or not recognizable.In this context, the Subdistrict Court also considers it important that this is a photo in which [plaintiff] is central and - partly due to the visibility of her name and profession - is recognizable; it is not a photograph of, for example, a street scene on which [plaintiff] more or less happens to appear among various others and / or on which she is hardly or not recognizable.In this context, the Subdistrict Court also considers it important that this is a photo in which [plaintiff] is central and - partly due to the visibility of her name and profession - is recognizable; it is not a photograph of, for example, a street scene on which [plaintiff] more or less happens to occur among various others and / or on which she is hardly or not recognizable.

5.16.

Moreover, Schiphol has not raised any interest that, in weighing up against the aforementioned interest of [plaintiff], could justify the infringement of its privacy. Schiphol's defense that this was merely a mistake and that the photo of [plaintiff] can be found on Google Image Search for a large audience does not make this any different. The commercial and journalistic interest of Schiphol in publishing an article about its cooperation with [the Foundation], however much it also falls under the protection of Article 10 ECHR, does not weigh heavily enough in view of the circumstances of this case. Moreover, it appeared that the information value of the article could also be supported with another photo, which was substituted for the photo of [claimant]. Contrary to what Schiphol apparently believes,it is irrelevant in this context whether or not the photos would be harmful to the reputation of [claimant] and whether or not [claimant] enjoys redeemable popularity. Incidentally, in the opinion of the Subdistrict Court, in view of the campaign of [the Foundation] alone, in which the portrait of [claimant] was chosen as an eye-catcher and was therefore apparently used because of the donation-generating capacity, it is certain that [claimant] enjoys redeemable popularity , so that in addition to personality interests, the commercial interests of [claimant] are also at stake.whereby the portrait of [claimant] has been chosen as an eye-catcher and is therefore apparently used because of the donation-generating capacity, it is established that [claimant] enjoys redeemable popularity, so that in addition to personality interests, the commercial interests of [claimant] are also at stake.whereby the portrait of [claimant] has been chosen as an eye-catcher and is therefore apparently used because of the donation-generating capacity, it is established that [claimant] enjoys redeemable popularity, so that in addition to personality interests, the commercial interests of [claimant] are also at stake.

5.17.

The above consideration implies that Schiphol, by using the photo of [Claimant] in its article on the website of [the Platform], which article was subsequently also shared via Twitter, and even if this use was based on a mistake, is an infringement to the portrait right of [claimant] and thereby acted unlawfully towards her. Schiphol is therefore liable to [claimant] for the damage it has suffered and will still suffer.

the GDPR

5.18.

[Plaintiff] has partly based her claim on the fact that Schiphol acted in violation of the GDPR by - in summary - not removing her portrait (with her name and appeal visible on it) from her servers in 2018 and her and the AP also not to inform about the unlawful use of her portrait, name and profession. Schiphol has disputed that there was an unlawful infringement of the personal data of [claimant] and that Schiphol was obliged to inform [claimant] or the Dutch DPA about this.

5.19.

In addition to her portrait, the photo of [Claimant] also shows her name (through the name plate) and her profession (through the clothing), so that it is established that this concerns the processing of personal data within the meaning of the GDPR. The Subdistrict Court is then faced with the question whether there has been a data breach of these personal data (portrait, name and profession) within the meaning of Article 4 sub 12 GDPR. In the opinion of the Subdistrict Court, this is the case, since the use of the photo of [plaintiff] after it had been expressly stated that it could no longer be used for the [Foundation] campaign can be regarded as an infringement security that - according to Schiphol - accidentally leads to unauthorized access to data stored or otherwise processed at Schiphol.The Subdistrict Court also agrees with [claimant] that the principles of article 5 paragraph 1 under a and b GDPR have not been complied with, since this processing was not known to [claimant] and, moreover, outside the - in the context of the campaign of [the Foundation] at Schiphol - permitted use.

5.20.

Schiphol's appeal to article 6 paragraph 1 sub f GDPR has failed. Contrary to Schiphol's contention, the fact that there would be no additional infringement of the rights and freedoms of [Claimant] as referred to in the GDPR (because her portrait was already widely known, visible and was available through various channels, including the campaign of [the Foundation] at Schiphol) does not mean that Schiphol automatically has a legitimate interest within the meaning of Article 6 paragraph 1 sub f GDPR for the processing of the personal data of [Claimant] such as happened in the article on the website of [the Platform]. After all, the article was not about [claimant] as a person and from an information point of view it was therefore not necessary to use the photo of [claimant] to illustrate this article.

5.21.

Schiphol's appeal to the exception to the notification requirement in Article 14, paragraph 5, sub a and b GDPR, also fails. The fact that employees of the marketing department of Schiphol were not aware of the contact details of [claimant] is at the expense and risk of Schiphol. Moreover, Schiphol could have reached and informed [plaintiff] through [the Foundation], who apparently was its contact person in this matter. Furthermore, the fact that [claimant] was aware that Schiphol had previously used her portrait does not detract from Schiphol's obligation to inform [claimant] that its data were still processed after notification that it could no longer be used. . Here too it is important that [Claimant] stated in 2018 that she no longer wanted her portrait to be used by Schiphol.

5.22.

Schiphol's appeal to Articles 85 GDPR and Article 43 GDPR Implementation Act does not benefit her, since, as is clear from what has been considered above, this does not concern processing for journalistic purposes only.

5.23.

With regard to the appeal of [Claimant] on Articles 33 and 34 AVG, the Subdistrict Court is of the opinion that it has been insufficiently stated or it has become apparent that publication of the photo of [Claimant] on the website of [the Platform] in January 2019 led to an increased risk to its rights and freedoms as referred to in the GDPR. After all, it is certain that the photo had already been used before, and for quite some time, as part of the campaign for [the Foundation] at Schiphol. It is also undisputed that the portrait of [plaintiff] was used for marketing campaigns of [company] and the [bank]. Moreover, the photo has not been visible for 24 hours with the article on the website of [the Platform], which was posted on a Dutch website in the Dutch language, whereby the name of [claimant] is in the photo, but not in the text of the article.Without concrete substantiation on this point, it cannot be seen that the community of [claimant] in [country] has become aware of this publication. Now that [Claimant] has failed to substantiate her assertions sufficiently, this is ignored. Although the Subdistrict Court, certainly in light of the wish expressed in 2018 on behalf of [Claimant] that her portrait would no longer be used by Schiphol, finds it careless that the photo with [Claimant] was published in January 2019 with the article on the website of [the Platform] and understands the indignation of [plaintiff] about this, it is, in view of the above, of the opinion that there has been no evidence of acting contrary to these provisions of the GDPR.certainly in light of the wish expressed in 2018 on behalf of [claimant] that her portrait would no longer be used by Schiphol, finds it careless that the photo with [claimant] was published in January 2019 with the article on the website of [the Platform ] and understands the indignation of [Claimant] about this, she is of the opinion, in view of the above, that there has been no evidence of acting contrary to these provisions of the GDPR.certainly in light of the wish expressed in 2018 on behalf of [claimant] that her portrait would no longer be used by Schiphol, finds it careless that the photo with [claimant] was published in January 2019 with the article on the website of [the Platform ] and understands the indignation of [Claimant] about this, she is of the opinion, in view of the above, that there has been no evidence of acting contrary to these provisions of the GDPR.in view of the above, it is of the opinion that it has not emerged that it has acted contrary to these provisions of the GDPR.in view of the above, it is of the opinion that it has not emerged that it has acted contrary to these provisions of the GDPR.

5.24.

The conclusion from the above is that Schiphol has acted in violation of the GDPR by not removing the photo of [claimant] (with also visible her name and appeal) from its servers in 2018, not notifying [claimant] of this. and to place the photo of [claimant] in January 2019 with the article on the website of [the Platform]. In doing so, Schiphol has infringed the privacy of [claimant]. Pursuant to Article 82 GDPR, [claimant] is therefore entitled to compensation.

statement of justice

5.25.

Apart from the claim for damages, the legal statements claimed by [plaintiff] have no independent significance. Therefore, the declarations of law are rejected.

compensation

5.26.

Subsequently, the question must be answered which compensation is reasonable in view of all circumstances. [plaintiff] has claimed an amount of in total € 23,000 for the damage suffered and to be suffered by it. [Claimant] has argued that both commercial and privacy interests must be taken into account when determining the compensation. Due to its fame, [claimant] claims to enjoy great popularity that can be redeemed, which justifies a multiple of the amount offered by Schiphol. In addition, according to [Claimant], the social and safety aspects to which she would have been exposed as a result of the publication are also important. [Claimant] argues that, as a result of the publication, persons in her community in [country] may have given the impression that she has earned a great deal of money from the publication.She has argued that this places her in [country] with obligations towards the community that [claimant] cannot meet and that she therefore runs a greater risk of being robbed or robbed. In view of the above, [claimant] would only have agreed to the use of her photo if the corresponding compensation would compensate for all these disadvantages of the use of her portrait, according to [claimant]. Schiphol has disputed the amount of the claimed damage with reasons.In view of the above, [claimant] would only have agreed to the use of her photo if the corresponding compensation would compensate for all these disadvantages of the use of her portrait, according to [claimant]. Schiphol has disputed the amount of the claimed damage with reasons.In view of the above, [claimant] would only have agreed to the use of her photo if the corresponding compensation would compensate for all these disadvantages of the use of her portrait, according to [claimant]. Schiphol has disputed the amount of the claimed damage with reasons.

5.27.

The Subdistrict Court stated first of all that it must be determined on the basis of objective criteria what reasonable compensation is. With regard to the social and security aspects, as follows from what has been considered above, [claimant] has not made it sufficiently concrete that she has had to deal with certain social and / or security aspects as a result of this publication of her photo. [Claimant] has exclusively referred to one court ruling in [nationality] ([country]) in a case in which the photo of a woman in [country] was used without her permission for an extensive advertising campaign in [country].The fact that in that case account was taken of and compensation was awarded for the safety aspects that the woman had to deal with as a result of the unlawful use of her photo, the Subdistrict Court considers understandable. However, this case cannot be compared with this case. After all, the present case concerns the publication of a photo that had previously been used in the context of the campaign for [the Foundation] at Schiphol, in an article on the website of [the Platform] about - among other things - that campaign. . Moreover, the photo has not been visible for 24 hours with this article, which was posted on a Dutch website in the Dutch language and the name of [claimant] cannot be found in the text of the article.Without concrete substantiation on this point, it cannot be seen that the community of [claimant] in [country] has become aware of this publication or that precisely this publication has resulted in an increased security risk for [claimant]. Now that [Claimant] has failed to substantiate her assertions sufficiently, this is ignored.

5.28.

The accusation against Schiphol that it did not immediately remove the publication or have it removed does not apply. After being made aware of its mistake, Schiphol immediately took action to ensure that the photo accompanying the article in question was removed. Because the article was also (automatically) shared via Twitter, Schiphol was largely dependent on third parties. Insofar as this was within its power, Schiphol also approached those third parties to remove the article with photo. For this reason, it is considered that Schiphol has made sufficient efforts to remove the photo or have it removed.

5.29.

In the opinion of the Subdistrict Court, the publication of the photo of [Claimant], in view of all the facts and circumstances, violated both the privacy interests of [Claimant] and her commercial interests. In view of the short duration of the publication, the context of the publication and compared to the amount of € 21,000 that - undisputed - was paid for the use of [claimant] 's portrait in the campaign of [the Foundation] at Schiphol for more than one year in 2017/2018, the Subdistrict Court considers the claimed compensation to be too high and sets the damage at an amount of € 1,500. The claim of [claimant] will be awarded up to this amount.

5.30.

The claimed statutory interest on this amount can also be awarded.

5.31.

Now that the parties have been unsuccessful on several points, the Subdistrict Court is of the opinion that it is reasonable for the parties to each bear their own legal costs.

6 The decision

The Subdistrict Court:

6.1.

orders Schiphol to pay compensation to [Claimant] of € 1,500.00, to be increased by the statutory interest on this amount from the date of the summons, being October 15, 2019, until the day of full payment;

6.2.

determines that each party bears its own litigation costs;

6.3.

declares this judgment provisionally enforceable;

6.4.

rejects the claim for the remainder.

This judgment was rendered by mr. PM Wamsteker, subdistrict judge, and pronounced in public on the above date in the presence of the registrar.

The Registrar The Subdistrict Court