Court of Appeal of Brussels - 2021/AR/205
| Hof van Beroep - 2021/AR/205 | |
|---|---|
 | |
| Court: | Cour d'appel de Bruxelles/ Hof van beroep Brussel (Belgium) |
| Jurisdiction: | Belgium |
| Relevant Law: | Article 6 GDPR Article 20 GDPR Article 21 GDPR Art. 209 WER |
| Decided: | 26.05.2021 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 2021/AR/205 |
| European Case Law Identifier: | |
| Appeal from: | APD/GBA (Belgium) 02/2021 |
| Appeal to: | Not appealed |
| Original Language(s): | Dutch |
| Original Source: | Arrest van 26 mei 2021 van het Marktenhof AR 205 (in Dutch) |
| Initial Contributor: | Enzo Marquet |
The Court of Appeal of Brussels held that a music company could continue to manage the social media fanpage of a music artist following the termination of a management agreement. The company has a legitimate interest to process the personal data on the fanpage, so long as this processing is in line with the right of reproduction, and the original contract.
English Summary
Facts
After a contractual relationship with the music company who owned the Facebook fanpage of the musician (including their full name), the latter wanted to get back control of this page. The DPA issued an order to transfer the page (APD/GBA - 14/2020) on the basis of data portability, but this order was annulled by the Court of Appeal. The litigation chamber of the DPA then issued a second decision (APD/GBA - 02/2021) which imposed a fine of €10,000 on the music company for not transferring the fanpage of the musician to them, for not transferring the fanpage of the musician to them, after they had exercised their right to data portability and right to object. The DPA imposed this second decision based on the lack of consent from the artist to use its name and the termination of the management agreement. The defendant has now appealed this decision.
According to the defendant, the DPA was incorrect to find that the lawfulness of the processing of the complainant's personal data under Article 6(1)(b) stopped on 3 November 2019, when the management agreement between the artist and the defendant was terminated. The defendant argues that the termination of the management agreement has no affect on its rights to manage the Facebook page. Its right to maintain the Facebook page was not based on the management agreement. Instead, the intellectual property rights to the musical works of the artist are relevant. As the exclusive licensee of certain musical works of the artist, the defendant is entitled to use the name and image of the performing artist of these musical works for the purpose of marketing and commercialisation of the music. These rights derive from various agreements between the company and claimant (not including the management agreement) which also involve a third party music producer.
Holding
The Court of Appeal held that the management of the artist fanpage falls under the c
(contractually agreed) exploitation of an artist (page), even though the name is the same as the person, falls under commercial practices and right to exploitation, and not data protection.
The personal data are in any case very limited (if there would be any processing of personal data at all), and the exploitation is a legitimate interest of the defendant, the interest of it is much more important. On top of that, the exploitation helps the complainant grow in outreach.
The Court of Appeal holds that the processing of data would still be legitimate as there is a legal ground for it (the exploitation contract and commercial interest). Since the defendants sufficiently prove that they exploited the fan page in accordance with the justification performance of a contract and in line with the producer's right of reproduction contained in Article Xl.209 WER (Economic Code) and all this in return for payment of royalties to the complainant, no violation of Article 21(1) juncto Article 12(3) can be shown by the DPA.
For these reasons, the DPA's decision has been annulled.
, artist agreement, the master agreements with the producers, the exclusive licence agreement, a publishing agreement.
The fifth plea in the law put forward by the applicants is well founded.
They operated the above-mentioned fan page in line with the reproduction right of the producer, contained in Article XI.209. in return for payment of royalties to the complainant. No violation of Article 21(1) in conjunction with Article 12(3) of the GDPR.
According to the artist's agreement of 26 July 2008 (document 4 in the applicants' file), the licence agreement of 20 November 2015 (document 6 above) and pursuant to Article Xl.209 WER and the rights of the phonogram producer, Y2 is exclusively entitled to use the
name and image of the performing artist of the musical works which are the subject matter of the of the contracts at issue and this for the duration of the copyright/ancillary rights (year 70). rights (70 years from the first recording).
In this context, the Facebook page was set up and used, and among other things, this professional Facebook page {which is different from the Facebook page} was used to promote the artist's name. professional Facebook page {different from the private Facebook page of the Complainant, which is managed by herself) the musical works concerned were digitally exploited and sold.
een managementovereenkomst (vanaf 2008),
een artiestenovereenkomst (vanaf 26 juli 2008)
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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.
