Rb. Overijssel - C/08/262365 / KG ZA 21-46
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| Rb. Overijssel - C/08/262365 / KG ZA 21-46 | |
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| Court: | Rb. Overijssel (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 2(2)(c) GDPR Article 8 GDPR Dutch GDPR Implementation Act |
| Decided: | 07.04.2021 |
| Published: | 12.04.2021 |
| Parties: | Anonymous Anonymous |
| National Case Number/Name: | C/08/262365 / KG ZA 21-46 |
| European Case Law Identifier: | ECLI:NL:RBOVE:2021:1506 |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | Dutch |
| Original Source: | Rechtspraak.nl (in Dutch) |
| Initial Contributor: | n/a |
The Overijssel Court of First Instance held that a legal guardian of a minor under the age of sixteen had to provide their consent in order for a third party to post content (photos or videos) of that minor. The Court noted that the fact that the defendant third party shared a bond with the minor, and that her child is the minor's half-sister, was immaterial.
English Summary
Facts
The defendant has posted content of the plaintiff’s child on social media. The plaintiff has not given her consent. The plaintiff has asked the defendant to remove the content. The defendant did not remove the content. The defendant states that she could post the content considering she is attached to the child and because her child is his halfsister.
Dispute
Does the defendant have to remove the content of the minor from social media because the plaintiff (the minor's mother) did not give her consent?
Holding
The court holds that based on the GDPR and the Dutch GDPR Implementation Act the legal guardian of a minor under the age of sixteen has to give consent for posting content (photos or videos) of the minor.
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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.
Authority
Court of Overijssel
Date of judgment
07-04-2021
Date of publication
12-04-2021
Case number
C / 08/262365 / KG ZA 21-46
Jurisdictions
Civil rights
Special characteristics
Interim injunction
Content indication
The defendant has posted images (photos and videos) on social media of the plaintiff's minor son. This is in violation of the legal provisions in this regard (GDPR and GDPR Implementation Act). Posting photos of minors who have not yet reached the age of sixteen requires permission from the legal representative. Plaintiff has not given permission to defendant to post images. The footage must be removed.
Locations
Rechtspraak.nl
Enriched pronunciation
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Statement
COURT OF OVERIJSSEL
Team canton and commercial law
Seat in Almelo
case number / cause list number: C / 08/262365 / KG ZA 21-46
Interim injunction of April 7, 2021
in the case of
[claimant]
,
residing in [residence],
claimant, hereinafter referred to as [claimant],
lawyer: mr. B.A.M. Old Breuil in Enschede,
against
[defendant]
,
residing in [residence],
defendant, hereinafter referred to as [defendant], appeared in person.
1 The procedure
1.1.
The course of the procedure is evidenced by:
- the writ of summons of March 2, 2021 with exhibits, - the deed of amendment of claim of March 22, 2021,
- the oral hearing via skype, held on March 24, 2021, at which [plaintiff] appeared, assisted by her lawyer mr. Oude Breuil. [Defendant] has also appeared. The registrar has made notes of the hearing.
1.2.
Finally, verdict has been determined.
2 The facts
2.1.
[Claimant] has had a relationship with Mr. [X]. From this relationship was born on [date of birth] [minor]. [Claimant] and [X] exercise joint custody over [minor].
2.2.
After the relationship between [Claimant] and [X] ended, [X] entered into a relationship with [Defendant]. At that time, [minor] was largely residing with [X], who lived with [defendant].
2.3.
[X] and [defendant] also have a child together. The relationship of [X] and [defendant] has now ended.
2.4.
In the meantime, [minor] has his principal residence with [Claimant] and a care arrangement has been established. [Claimant] and [X] jointly have parental authority over [minor]. 2.5. [defendant] has posted images of [minor] on social media.
2.6.
By letter dated 4 February 2021, [plaintiff] and [X] submitted a request to [defendant] to remove visual material. Insofar as relevant, the letter states: '(…) on your Facebook page there are <photos / video images> on which our son, [minor] can be recognized. A <photo / video> in which our son, [minor] can be identified in image is personal data. The law states that the personal data may only be used if we as parents give unambiguous consent for this and we do not give permission for the posting of these images. We believe that this is in violation of our son's [minor] right to privacy. We therefore ask you to remove all <photos / video images> of which [minor] can be recognized before February 10, 2021. If the footage is not removed before February 10, 2021, we will be forced to take legal action. (…) ".
2.7.
In a letter dated 11 February 2021, the lawyer of [claimant] ordered [defendant] to remove the images by 17 February 2021, failing which legal proceedings will be started.
2.8.
[defendant] has not removed the footage.
3 The dispute
The progress
3.1. After amendment of the claim, [claimant] claims - in summary - that the preliminary relief judge, by judgment, enforceable by stock and enforceable on the minute, condemns [defendant] to within eight days after service of the judgment all images of [minor] posted by or on behalf of her or on which [minor] is also depicted on all social media or otherwise on the internet, in particular on Facebook, to be removed or to have it removed from it, subject to forfeiture of a penalty of € 50.00 per day with a maximum up to € 10,000.00, legal costs.
3.2.
[Claimant] bases her claim on the following. The General Data Protection Regulation (Implementation) Act (hereinafter: GDPR Implementation Act) stipulates that the permission of their legal representatives is required for the posting of photos of minors who have not yet reached the age of 16 years. [Claimant] states that he has not given permission for the posting of images of [minor]. The footage must be removed. According to [Claimant], [X] has supported her request, this is also apparent from the letter of 4 February 2021 signed by [Claimant] and [X]. [Defendant] is acting unlawfully, according to [Claimant].
The defense
3.3.
[defendant] contends that the claim of [plaintiff] should be rejected. [Defendant] has submitted that she finds it strange that this request is coming now that the relationship between her and [X] is over. [defendant] and [X] had a joint Facebook. [X] also posted photos of [minor] there, according to [defendant].
According to [defendant], [X] has never said that he does not want photos to be posted and does not support this request. [Defendant] and [X] also have a child together, this is the half-sister of [minor]. They are also in pictures together. [defendant] has developed a bond with [minor] and she cannot and does not want to erase the memories. If the image material has to be removed from the internet, she will tape the photos of [minor], so that he is no longer recognizable in the image.
3.4.
The arguments of the parties are discussed in more detail below, insofar as they are relevant.
4 The assessment
4.1.
The prescribed terms and formalities have been observed in the summons.
4.2.
In view of the nature of the claims and the claims made in this respect by [plaintiff], the preliminary relief judge considers that there is an urgent interest. Moreover, the urgent interest has not been disputed by [defendant]. This means that the claims of [plaintiff] can be handled substantively.
4.3.
The question that the preliminary relief judge must consider is whether [defendant] is obliged to remove the images of [minor] posted on social media, including Facebook. The preliminary relief judge considers this as follows.
4.4.
The General Data Protection Regulation (hereinafter: GDPR) protects the fundamental rights and freedoms of natural persons, and in particular their right to protection of personal data. It has been established that this case concerns the processing of personal data as referred to in the GDPR. Now that it has been established without contradiction that the Facebook page of [defendant] is public, it cannot be ruled out that the images posted by it may be distributed and end up in the hands of third parties. In view of this, it has not emerged that the [defendant] is engaged in a purely personal or household activity (as referred to in Article 2 (2) (c) of the GDPR). This means that the provisions of the GDPR and the GDPR Implementation Act apply to the present dispute.
4.5.
The GDPR Implementation Act, more specifically article 5 paragraph 1, (read in combination with article 4, sub 1 and 2 of the GDPR, which states what falls under “personal data” and “processing”) stipulates that for the posting of photos of minors , who have not yet reached the age of sixteen, the consent of their legal representative is required. It has been established that [minor] is a minor and that [plaintiff] as legal representative has not given permission to [defendant] to post images of [minor] on social media. According to the signed letter of 4 February 2021, [X] also did not (anymore) give permission for the posting of visual material of [minor]. In view of the content of the letter of 4 February 2021, the assertion of [defendant] that [X] expresses himself differently towards her makes no difference in these proceedings. Apparently this is the current position of [X]. Now that the legal representatives do not give permission for the posting of images of [minor], the preliminary relief judge will order [defendant] to remove or have the images of [minor] removed on social media and to keep them removed. The alleged interest of [defendant] to be allowed to post images of [minor] on social media, because she is attached to him and because he has a half-sister, cannot lead to a different judgment in this context. [defendant] may have access to the images of [minor], but she may not place it (anymore) on the internet. With regard to the joint photos of [minor] with (for example) his half-sister, which photos [defendant] presented during the oral hearing, the preliminary relief judge notes that [minor] should in any case not be recognizable in the picture. For the rest, all image material of [minor] must be removed.
4.6.
The Preliminary Relief Judge sees reason to maximum the claimed penalty as to be reported later.
4.7.
The claim to declare the judgment provisionally enforceable at the minute will not be awarded. The judgment is enforceable on the basis of the law. In addition, [Claimant] has not substantiated the interest it has in having the judgment declared enforceable to the minute.
4.8.
As the unsuccessful party, [defendant] will be ordered to pay the costs of the proceedings. Since [plaintiff] has been granted an addition, the costs for issuing the summons (excluding disbursements such as information costs) have been debited. These costs are therefore not eligible for compensation to [claimant]. The costs on the part of [claimant] are estimated at: - salary of lawyer: € 656.00 - disbursements, consisting of:
court fee € 85.00
other disbursements € 1.80
total € 742.80
5 The decision
Judge in preliminary relief proceedings
5.1.
orders [defendant] to remove (or have removed) all images of [minor] posted by or on its behalf on all social media or otherwise on the internet, in particular on Facebook, and to keep them removed within eight days after this judgment has been served as well as edit the image material on which [minor] is also depicted in such a way that [minor] is completely unrecognizable,
5.2.
orders [defendant] to pay to [plaintiff] a penalty of € 50.00 for each day that it does not (fully) comply with the in 5.1. pronounced main conviction, up to a maximum of € 2,500.00 has been reached,
5.3.
declares this judgment provisionally enforceable so far,
5.4.
orders [defendant] to pay the costs of the proceedings, estimated on the part of [plaintiff] at € 742.80,
5.5.
rejects the more advanced or otherwise advanced.
This judgment was rendered by Mr. H. Bottenberg-van Ommeren and pronounced in public on April 7, 2021 by Mr. U. van Houten.
