Rb. Rotterdam - C/10/603827 / KG ZA 20-816
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| Rb. Rotterdam - C/10/603827 / KG ZA 20-816 | |
|---|---|
 | |
| Court: | Rb. Rotterdam (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 4(1) GDPR Article 6 GDPR |
| Decided: | 21.04.2021 |
| Published: | 18.05.2021 |
| Parties: | |
| National Case Number/Name: | C/10/603827 / KG ZA 20-816 |
| European Case Law Identifier: | ECLI:NL:RBROT:2021:4308 |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | Dutch |
| Original Source: | de Rechtspraak (in Dutch) |
| Initial Contributor: | n/a |
In a family dispute, the Rotterdam Court of First Instance ordered the defendants to refrain from sharing personal data of plaintiffs, including via emails, website or social media posts, SMS or by any other means.
English Summary
Facts
The parties are related to each other. Defendant 1 believes that the takeover of the family business by her siblings was done to her disadvantage and that she is entitled to compensation. Defendant 2 (husband of Defendant 1) sent emails to friends, family and business contacts of the business in question, including the reception and works council of the company. That email described the Defendants’ side of the conflict, but also mentioned names of all other involved family members, including the names of the wives of the siblings of Defendant 1 and the phone number of one of them.
Dispute
Can Defendants be ordered to refrain from processing of personal data relating to other family members with an order to pay a penalty of € 10.000,00 for each violation, to be increased by € 1.000,00 for each day that the violation continues? The Defendants argue that this prohibition is formulated too broadly and cannot be allowed.
Holding
The Court ruled that in this case the sharing of the personal data via email or posting them on public websites/social media constitutes personal data processing under GDPR and that it was done without a legal basis. Given that it’s a family matter, the Court did not order the Defendants to pay a penalty. The Court ordered the Defendants to refrain from sharing personal data of plaintiffs, including via emails, website or social media posts, SMS or by any other means.
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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 Rotterdam
Date of judgment
21-04-2021
Date of publication
18-05-2021
Case number
C / 10/603827 / KG ZA 20-816
Jurisdictions
Civil rights
Special characteristics
Interim injunction
Content indication
Interim injunction. Dispute between family. Collision of Fundamental Rights. GDPR. Contact ban.
Locations
Rechtspraak.nl
Enriched pronunciation
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Statement
verdict
COURT ROTTERDAM
Trade and port team
case number / cause list number: C / 10/603827 / KG ZA 20-816
Interim injunction of April 21, 2021
in the case of
1.
[claimant 1],
residing at [place of residence of claimant 1],
2. [claimant 2],
residing at [place of residence of claimant 2],
3.
[claimant 3] ("[claimant 3]"),
residing at [plaintiff's place of residence 3],
4. [claimant 4] ("[claimant 4]"),
residing at [plaintiff's residence 4],
plaintiffs,
attorney mr. J. Verhoeven in Alphen aan den Rijn,
against
1. [defendant 1],
2.
[defendant 2]
,
both residing in [residence],
defendants,
lawyer mr. S.A. Ray in Rotterdam.
The parties are hereinafter referred to as [plaintiff 1] et al. And [defendant 1] et al. Respectively. Separately, claimants are referred to as [claimant 1], [claimant 2], [claimant 3] and [claimant 4]. Defendants are referred to separately as [defendant 1] and [defendant 2].
1. The procedure
1.1.
The course of the procedure is evidenced by:
-
the summons of September 14, 2020 with exhibits 1 to 24
-
exhibits 25 to 28 of [claimant 1] et al.
-
the statement of defense of [defendant 1] et al.
-
the oral hearing held on September 23, 2020
-
the pleading note of [plaintiff 1] et al.
-
the unnumbered production submitted at the hearing by [defendant 1] et al
-
the official report of the session of September 23, 2020
-
the pro forma arrest of the case for the purpose of referral to mediation until November 26, 2020, and its extension
-
the correspondence between the parties and the preliminary relief judge during the mediation process
-
the message of March 31, 2021 from [plaintiff 1] et al, showing that the mediation was not successful. [plaintiff 1] et al. asks for judgment to be given.
1.2.
On April 8, 2021, the preliminary relief judge informed the parties that the verdict was determined on April 21, 2021.
1.3.
On April 14, 2021, a message from mr. Ray was received at the Bureau Interim Provisional Judge with the request not to issue a judgment for the time being, pending receipt of further (mediation) documents. After a request from the preliminary relief judge, mr. Verhoeven responded to that message from mr. Ray in an email dated 14 April 2021. On April 16, 2021, the preliminary relief judge received a brief report from the mediation office dated April 12, 2021 about the course and outcome of the mediation between the parties, including the parties' comments on this.
The Preliminary Relief Judge has taken note of the messages from the parties' counsel and of the report of the mediator. The report shows that the mediation did not lead to a solution. The mediator has proposed referring the case to forensic mediation. There must be willingness on the part of both parties to (again) refer to mediation. [Claimant 4] 's response to the draft report shows that [Claimant 1] et al. Is not willing to do so. Therefore, the case is not referred to mediation again.
2. The facts
2.1.
Parties are related to each other. [Claimant 1] and [Claimant 2] are the parents of [Claimant 3] and of the twins [Claimant 4] and [Defendant 1]. [defendant 2] is the husband of [defendant 1]. [Claimant 1] is 90 years old and [Claimant 2] 83 years old.
2.2.
Until 1989, [claimant 1] and his brother, Mr. [person A] (now 95 years old) (hereinafter: [person A]), were the (indirect) shareholders in the family business [name of family business]. In 1989 [person A] sold his shares to [claimant 3]. In 1991 [claimant 1] sold his shares to [claimant 4]. Since then, [claimant 3] and [claimant 4] have each been a 50% indirect shareholder in [name of family business].
2.3.
[name of family business] specializes in the (international) transport of fuels, lubricating oils, LPG, industrial gases and chemicals. It has offices in the Netherlands, Belgium, Luxembourg and Germany.
2.4.
After the transfer of the shares in [name of family business] to [plaintiff 3] and [plaintiff 4], a dispute arose between the parties about the way in which the business takeover was structured and whether this resulted in disadvantage for [defendant 1]. There is also a dispute as to whether the financial position of [plaintiff 1] and [plaintiff 2] has changed in favor of [plaintiff 3] and [plaintiff 4], and thus to the detriment of (the inheritance position of) [defendant 1]. . In both cases [defendant 1] is of the opinion that she is entitled to compensation. As a result of these issues, family relationships have been disrupted and various lawsuits have been or have been pending between the parties.
3. The dispute
3.1.
[plaintiff 1] et al. demands that the preliminary relief judge [defendant 1] et al. by judgment, as far as possible provisionally enforceable, jointly and severally:
condemns to remove the website [website name] within twelve hours of service of the judgment to be rendered and to keep it removed, with an order to pay a penalty of € 10,000.00 for each day or part thereof that [defendant 1] et al. does not comply with this;
condemns to refrain from processing (including the distribution via e-mail, internet, telephone, text messages, the (social) media or otherwise) of personal data relating to [claimant 1] et al. in Article 4 (1) of the GDPR), with an order to pay a penalty of € 10,000.00 per violation, to be increased by € 1,000.00 for each day that the violation continues;
condemns to refrain from contacting (in any form, by telephone, digitally or in person) [plaintiff 1] cs, people / companies / authorities in the private environment of [plaintiff 1] cs and people / companies / authorities in the business environment of [plaintiff 1] et al. (including the people who work at or for the company [name of family business] and its affiliated companies and businesses), on the understanding that contact with [plaintiff 1] et al is only permitted (i) insofar as this does not draw attention to the alleged claim against [Claimant 1] et al and / or all matters related thereto, or (ii) the contact takes place through the intervention of a lawyer registered at the time of the contact on the tableau, with an order to pay a penalty of € 10,000.00 per violation;
to order the costs of these proceedings, with the stipulation that [defendant 1] et al. must pay the amount of the order for costs within fourteen days after the date of the judgment to be given to [plaintiff 1] et al., failing which [defendant 1] et al. 1] et al. From the fifteenth day the statutory interest on the court costs order as well as the subsequent costs become owed.
3.2.
[defendant 1] et al. puts forward a defense.
3.3.
The arguments of the parties are discussed in more detail below, insofar as they are relevant.
4. The assessment
preface
4.1.
In short, this case concerns a clash of fundamental rights. On the one hand, this concerns the right of [Claimant 1] et al. To respect for honor and reputation (right to privacy) and the right to be safeguarded against serious violations of privacy (prohibition of contact). On the other hand, [defendant 1] et al. Has the right to freedom of expression (including sending e-mails and text messages and posting messages on the website [name of website]) and his right to have free contact with anyone. , including [plaintiff 1] et al. Which interest should be decisive depends on the interrelated facts and circumstances that can justify such an infringement.
Urgent interest
4.2.
[defendant 1] et al. has disputed that [plaintiff 1] et al. has an urgent interest in his claims. The preliminary relief judge does not follow [defendant 1] et al. The clash of fundamental rights is at issue in these preliminary relief proceedings. This provides a sufficient degree of urgency. In addition, the conflict that divides them has seriously disrupted contact between parties. In view of the family relationships, in which in particular the advanced age of the parents [claimant 1] is taken into account, and the mutual powerlessness of the parties and the feeling that they are being neglected by the other party, there is a need for an order measure. even more urgent in this case.
Claim under 3.1 sub 1: the website
4.3.
During the oral hearing held on September 23, 2020, the parties agreed “that they (…) [from September 23, 2020] and during the mediation will not make public statements about the issue that divides them, including whether a document exists that at the end of the 1980s a sign was signed at Moret Ernst & Young in Rotterdam and whether Ms [defendant 1] ([defendant 2].) can claim compensation (for disadvantage) on that basis ”.
In the spirit of that agreement, [defendant 2] promised at the hearing to remove the full content of the website [name of website] on the same day and to ensure that the website goes offline by 26 September 2020 at the latest.
The appointment has been made for the period from September 23, 2020 and during the mediation. The mediation between the parties did not lead to a solution and ended on or around 12 April 2021. In connection with this, the interest of [claimant 1] et al. In that part of the claim under 3.1 sub 1 that relates to the removal of the website plausible. This part of the claim is awarded. To this end, the following is considered.
4.4.
In these preliminary relief proceedings, the statements of [defendant 1] et al. Must be tested against the freedom of expression and the restrictions to be made thereon. Since [plaintiff 1], [plaintiff 2], [plaintiff 3], [plaintiff 4] and [defendant 1] all have the last name '[plaintiff 1]' and are identified with the family business [name of family business], the statements of [ defendant 1] et al. cause reputational damage to [name of family business]. [Defendant 1] et al. has not disputed that either. The allegations of [defendant 1] et al. On the publicly available website [name of website] will also be understood by third parties in this way. The fact that it is only [plaintiff 3] and [plaintiff 4] who (indirectly) have control over [name of family business] does not detract from this. The question that must be answered is whether [defendant 1] et al., Partly with a view to the interests of [plaintiff 1] et al., Acted with sufficient care when placing the statements on the website. In the first place it is important whether the statements on the website find sufficient support in the facts (known at the time of their communication). In summary proceedings, the rules regarding evidence do not apply and it is sufficient to answer the question whether, on the basis of the evidence brought to the attention of the preliminary relief judge, the allegations on which the requested provision is based have become sufficiently plausible.
4.5.
In the opinion of the preliminary relief judge, the statements find insufficient support in the facts. It is important for this that:
- [defendant 1] et al. stated on the website that: “After a long investigation it appears that [plaintiff 3] and [plaintiff 4] [plaintiff 1] in 1989 and 1991 respectively acquired 50% of the family business [name of family business] without to pay for yourself ”. It may perhaps be assumed that [defendant 1] et al. Has conducted some investigation. [Defendant 1] et al. has not made concrete and substantiated plausible evidence that there is a long and thorough investigation from which it can be readily deduced that [Plaintiff 3] and [Plaintiff 4] in fact acquired the shares for no consideration. On the other hand, there is a statement of 22 May 2019 from the now retired accountant of [claimant 1] cs / [name of family business], Mr [person B], at the time associated with the current Ernst & Young (appendix 6 to exhibit 1 to the writ of summons) . From that statement it can be deduced that [plaintiff 3] and [plaintiff 4] paid with borrowed money to acquire their share portfolio in [name of family business], subject to an arm's length interest, and that in any case [plaintiff 4] loan granted to him. [person B] made this statement with a view to the request of [defendant 1] to hold a provisional witness examination. In the context of these summary proceedings, the preliminary relief judge has no reason to doubt the correctness of that statement by [person B]. This applies even more now that what [person B] states about the arm's length nature of the two transactions and the purchase price, corresponds with the content of the documents submitted as exhibit 2 by summons by which the respective transfers of shares in [name of family business] to the two brothers are effected.
- the existence of the document mentioned on the website that [defendant 1] would have signed in 1989 and in which her role / future within the company and further agreements are described, on the basis of the aforementioned statement of [person B], in this summary proceedings have not been made plausible either. [person B] says about this, among other things: “(…) If there was a document, it had to be found. (…) Although [defendant 1] has not provided any clues for verification, I have done everything I could to investigate the existence of such a document (…) ”. Until these preliminary relief proceedings, [defendant 1] et al. Failed to provide concrete and convincing evidence for verification. [defendant 1] et al. is actually bogged down in suspicions.
- the assertion that [claimant 1] and [claimant 2] would have transferred their property to [claimant 3] and [claimant 4] is not supported by the facts. [defendant 1] et al. has failed to substantiate this assertion with documents, while [plaintiff 1] et al. has argued with reasons and with reference to the public registers verifiable for everyone that this is the case.
- the notice on the website that the house of [defendant 1] has been seized by [plaintiff 1] et al. does not contain the entire story. [defendant 1] et al. failed to state for which claim attachment has been levied and that the attachment is not enforced by [plaintiff 1] et al.
4.6.
In view of the incompleteness / inaccuracy that has been found, the statements discussed above under 4.5 can be regarded as offensive and damaging in relation to [claimant 1] et al. [Defendant 1] et al. acted unlawfully in this way. Because it is assumed that the website has been kept removed by [defendant 1] et al. Since 23 September 2020, the preliminary relief judge sees no reason to attach a penalty to the conviction.
Claim under 3.1 sub 2: AVG
4.7.
Regulation (EU) 2016/679 has been in force since 25 May 2018. This regulation is called the General Data Protection Regulation (GDPR). In Article 4 (1) of the GDPR, personal data means all information about an identified or identifiable natural person ('the data subject'); an identifiable person is a natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or one or more elements characteristic of the physical, physiological, genetic, psychological, economic, cultural or social identity of that natural person.
4.8.
It is not disputed between the parties that from the e-mail address of the family [defendant 1], [name e-mail address], [defendant 2] sent the e-mails submitted as exhibits 6 and 7 with the summons. At the hearing, [defendant 1] et al. Confirmed that the e-mails in question were sent to the friends, family and business contacts referred to under marginal number 46 of the summons and affiliated with [plaintiff 1] et al., Including the reception and the works council of [name of family business]. In addition to the discussion of the conflict that divides the parties and in respect of which the correctness and completeness of the vision of [defendant 1] et al. Is not readily plausible, the e-mails not only contain the names of all belonging to [plaintiff 1] et al., But also those of [person C] (the wife of [claimant 3]) and [person D] (the wife of [claimant 4]). In Exhibit 6, [defendant 2] included an invitation to obtain information about the conflict from [person C], stating her 06-number.
The mention of these names and the telephone number of [person C] on the public website fall under the concept of "processing personal data". Article 4 GDPR mentions dissemination as a method of processing. Article 6 GDPR states that processing of personal data is only permitted if one of the conditions referred to in Article 6 GDPR has been met, for example because the person concerned has given permission for this. It has not been stated or shown that the processing took place with consent. The dissemination of their personal data by [defendant 1] et al. Without permission on the part of [plaintiff 1] et al. Or without any other valid reason is therefore contrary to the GDPR and unlawful. The fact that [person C] is not a party to these summary proceedings does not change this judgment.
The foregoing also applies to other types of messages of comparable incomplete / incorrect content that [defendant 1] et al. Has sent to third parties or has posted on a public medium or social media.
The claim of [plaintiff 1] et al. Brought under 3.1 sub 2 is therefore allowed. Without further substantiated explanation, it is not possible to see why the prohibition would be too broadly formulated as [defendant 1] et al. Argues. In view of family relationships and in order to avoid a reason for further escalation, the preliminary relief judge does not attach a penalty to the conviction. The preliminary relief judge expects and assumes that [defendant 1] et al. Will adhere to the conviction. If this is not the case, [plaintiff 1] et al. Is free to request reinforcement with a penalty.
Claim under 3.1 sub 3: prohibition of contact
4.9.
The premise is that a contact ban violates someone's fundamental right to move freely. For such a measure to be allowed, it must be sufficiently plausible that facts and circumstances have occurred and / or are likely to occur that justify such an infringement of this right.
4.10.
In these interim relief proceedings, therefore, there must in any case be a real threat of future unlawful action by [defendant 1] et al. Towards [plaintiff 1] et al.
With regard to approaching employees / business relations of [name of family business], in the given circumstances it is conceivable that such a threat exists. However, with the award of the claim under 3.1 sub 1 and 2, the threat of unlawful acts is sufficiently obviated and [plaintiff 1] et al. Can be considered to be adequately protected against this. For the rest it cannot be established that there is a real threat of unlawfulness. Moreover, the restraining order is very broadly formulated and also pertains, for example, to the contact between [defendant 1] and her parents. In view of the advanced age of [plaintiff 1] and [plaintiff 2], the preliminary relief judge is of the opinion that the possibility of contact between [plaintiff 1], [plaintiff 2] and [defendant 1] should not be limited by imposing a contact ban. Insofar as the claim relates to what may or may not be discussed in contact between the parties, this tends to be a form of censorship / an absolute prohibition on speaking. All this leads to the claim under 3.1 sub 3 being rejected.
Advanced joint and several liability
4.11.
With regard to the claims to be awarded under 3.1 sub 1 (in part) and sub 2, [plaintiff 1] et al. has asked [defendant 1] et al. to be ordered jointly and severally. Since there is no substantiation for this, reported claims are awarded without joint and several liability.
Process costs
4.12.
The litigation costs are compensated between the parties. The Preliminary Relief Judge sees no reason to deviate at this time from the usual compensation of costs in family relationships. Moreover, both parties can be regarded as partly in the wrong. Now that the legal costs are being compensated, there is no entitlement to reimbursement of subsequent costs and statutory interest.
5. The decision
The preliminary relief judge
5.1.
condemns [defendant 1] et al. to keep the website [name of website] removed,
5.2.
orders [defendant 1] et al. to refrain from processing (including the distribution via e-mail, internet, telephone, SMS messages, the (social) media or otherwise) after this judgment has been served on [plaintiff 1 ] cs related personal data,
5.3.
declares this judgment provisionally enforceable so far,
5.4.
compensates the costs of these proceedings between the parties, in the sense that each party bears its own costs,
5.5.
rejects the more advanced or otherwise advanced.
This judgment was rendered by mr. C. Sikkel and pronounced in public on April 21, 2021.
