Rb. Rotterdam - 9278154 \ Cv EXPL 21-20548
From GDPRhub
| Rb. Rotterdam - 9278154 \ Cv EXPL 21-20548 | |
|---|---|
 | |
| Court: | Rb. Rotterdam (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 4(1) GDPR Article 6(1)(a) GDPR Article 6(1)(f) GDPR Article 7(3) GDPR |
| Decided: | 12.12.2021 |
| Published: | 03.01.2022 |
| Parties: | Coolblue B.V. |
| National Case Number/Name: | 9278154 \ Cv EXPL 21-20548 |
| European Case Law Identifier: | ECLI:NL:RBROT:2021:13048 |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | Dutch |
| Original Source: | Rechtspraak.nl (in Dutch) |
| Initial Contributor: | Giel Ritzen |
The Rotterdam Court of First Instance considered that Coolblue could process data subject’s personal data pursuant to Article 6(1)(f) GDPR, because their legitimate interest overrides the fundamental rights and freedoms of data subject.
English Summary
Facts
Controller is Coolblue B.V., a company that sells (electronic) products. Data subject was employed at Coolblue between 8 August 2017 and 7 August 2020. During that time, with data the subject’s permission, Coolblue took photographs of the data subject in the context of promotion/marketing. Pictures of data subject were seen on approximately hundred Coolblue-vans, and they also featured in a promotional video on Coolbue’s YouTube channel.
After the termination of the contract, data subject, among other things, claimed that Coolbue should (again) have requested data subject’s consent for the use of the promotional material, since it contained their personal data. According to the data subject, Coolblue had no legal basis to process their personal data, since data subject revoked their consent on the 20th of November 2020, pursuant to Article 7(3) GDPR.
Holding
The Rotterdam Court of First Instance rejected data subject’s claim that Coolblue had no legal basis to process their personal data.
First, it considered that the use of data subject’s pictures and video’s falls within the material scope of the GDPR, since personal data is being processed. It noted that data subject revoked their consent pursuant to Article 7(3) GDPR, and Coolblue could therefore not rely on Article 6(1)(a) GDPR as a legal basis for the processing of data subject’s personal data.
However, the Court stated that, although Coolblue could not rely on the data subject’s consent, it could rely on Article 6(1)(f) GDPR, if their legitimate interest to process the personal data override the data subject’s fundamental rights and freedoms do not override the legitimate interest of Coolbue. In that regard, the Court noted that Coolblue had a commercial interest, that this interest is legitimate, and that the costs for Coolblue would be unreasonably high, and the impact on their business enormous, if the photograph of data subject could no longer be used. Moreover, Coolblue also accommodated data subject’s interest because their portrait on Coolblue’s vans will be phased out, and the promotional video has been removed from YouTube.
Hence, the Court considered that, under these specific circumstances, the processing of personal data is necessary, and overrides the fundamental rights and freedoms of the data subject.
Comment
Share your comments here!
Further Resources
Share blogs or news articles here!
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.
Body
Court of Rotterdam
Date of judgment
17-12-2021
Date of publication
03-01-2022
Case number
9278154 \ CV EXPL 21-20548
Jurisdictions
law of obligations
Special characteristics
First instance - single
Content indication
Plaintiff's claim dismissed. There is no question of an infringement of the portrait right now that the plaintiff has given implicit and explicit permission for the manner in which his portrait is used. Nor is there any conflict with the GDPR.
Locations
Rechtspraak.nl
AR-Updates.nl 2022-0041
Enhanced pronunciation
Share pronunciation
print
Save as PDF
Copy link
Pronunciation
ROTTERDAM COURT case number: 9278154 \ CV EXPL 21-20548ruling: December 17, 2021 judgment of the subdistrict court, sitting in Rotterdam, in the case of
[plaintiff]
,residing in [place of residence] ,claimant, authorized representative: mr. G.C. Haulussy in Rotterdam, against the private company with limited liability COOLBLUE B.V., having its registered office in Rotterdam, defendant, authorized representative: mr. L.M. van Schuylenburch in Amsterdam. The parties are hereinafter referred to as “[claimant]” and “Coolblue” respectively.1. The course of the proceedings 1.1The course of the proceedings follows from the following procedural documents, which the subdistrict court has taken cognizance of: - the writ of summons of 7 June 2021 with exhibits 1 and 2; - the statement of defense with exhibits 1 to 6; - the interlocutory judgment dated September 6, 2021 in which an oral hearing has been determined; - the additional exhibit submitted by Coolblue prior to the oral hearing 7.1.2 The oral hearing was held on November 12, 2021. [claimant] appeared in person, assisted by his authorized person. Mr appeared on behalf of Coolblue
[Person A] (Legal Counsel) and Mrs. [Person B] , assisted by her authorized representative. The parties have each explained (further) their own point of view, whereby Coolblue's representative (also) made use of a pleading note that was added to the case file. The registrar kept a record of what was transacted at the hearing. 1.3 The verdict of the judgment has been determined by the subdistrict court judge today. 2. The established facts As stated on the one hand and acknowledged on the other, or if they have not been contradicted or not sufficiently motivated, the following is established between the parties, insofar as relevant.2.1
[claimant] started working for Coolblue on 8 August 2017 on the basis of an employment contract for a period of seven months. The employment contract signed by the parties on 22 June 2017 states – insofar as it is relevant below –: “ARTICLE 5. WHAT WE AGREE (…)… ABOUT PORTRAIT RIGHTS8. You are our face. That is why we like to use images with your portrait on it. We put this on our website and on YouTube, in folders, booklets, annual reports and all our other communications. You like that and so does your mother. of course you waive the portrait right, also for the period after your employment. Then luckily we still have the photos…”2.2On February 13, 2018, the parties signed a second employment contract for a definite period, commencing on March 8, 2018 and for a period of eight months. Article 5.8, as stated above under r.o. 2.1. quoted, also included. 2.3 In a letter dated 24 August 2018, Coolblue sent a message to [claimant]: “Hooray! We will continue together. Your contract has been extended by 8 months. Your new contract will take effect on November 8, 2018 and will expire on July 7, 2019. Furthermore, your current terms of employment will remain the same.” 2.4 In a letter dated October 19, 2018, Coolblue wrote to [claimant]: “Hooray! We are friends for life. Your contract will be extended indefinitely. It will take effect on 8 July 2019. Furthermore, your current employment conditions will remain the same.” This letter has been added to EigenBaas. Then we can always read back what we have agreed.” 2.5 On August 7, 2020, [plaintiff] was summarily dismissed by Coolblue. 2.6
On October 5, 2020, [claimant] submitted a request to the District Court of Rotterdam pursuant to Article 7:681 of the Dutch Civil Code.2.7 The authorized representative of [claimant] has notified Coolblue by e-mail dated 20 November 2020 that [claimant] believes that an infringement is being committed on his portrait right. It was requested to remove the portrait of [claimant] on delivery vans in use at Coolblue, as well as to take a promotional video with images of [claimant] offline. It was also requested to pay compensation to [claimant] in the amount of € 25,000.2.8 By decision dated December 22, 2020, the District Court of Rotterdam ruled that the summary dismissal given on August 7, 2020 was legally valid.3. The claim3.1
[claimant] has claimed by summons by judgment, provisionally enforceable: to declare that Coolblue has infringed [claimant]'s portrait rights by multiplying and/or making public images and moving images of [claimant]; declare that Coolblue is liable for the damage suffered and yet to be suffered by [claimant] as a result of the infringement of his portrait rights; order Coolblue to pay [claimant] an amount of € 25,000 by way of compensation, to be increased by the statutory interest from August 7, 2020 or November 20, 2020 or from the day of service of this summons; to order Coolblue, with immediate effect after service of the judgment to be given in this regard, with any direct and indirect infringement of to discontinue and to discontinue the portrait rights of [claimant], in any way whatsoever, upon forfeiture of a penalty of € 1,000 per day, to be calculated from the day after service of the the judgment; to pay the costs of this lawsuit, plus the statutory interest on the date of the judgment to be rendered in this case. 3.2 [Plaintiff] has based his claim on the following, succinctly stated and insofar as it is now relevant.3.3
[claimant] worked for Coolblue in the period from August 8, 2017 to November 17, 2020. The employment contract was terminated on August 7, 2020 due to an instant dismissal.3.4 During the period that [claimant] was working for Coolblue, Coolblue took photos of [claimant] with the permission of [claimant]. These photos are used by Coolblue on about a hundred delivery vans. In addition, [claimant] acted in a promotional video for new electric delivery vans that can be found on YouTube. now that Coolblue has no longer asked [claimant] to agree to the use of his portrait right. To date, Coolblue has not responded substantively to [claimant]'s request, which includes removing his portrait from the delivery vans, taking the promotional video offline and paying compensation. Nor have the photos been removed and the promotional video has been taken offline. [claimant] has therefore been forced to start the present proceedings.3.6
[claimant] invokes in the first place the provisions of Article 21 of the Copyright Act (hereinafter: AW), stating that he has not given (explicit) permission for the (unlimited) use of his portrait right and that he has a reasonable interest in to oppose the use of his portrait right. 3.6.1
For the period 8 August 2017 to 7 March 2018, [claimant] agreed that Coolblue was allowed to use [claimant]'s portrait on the website, YouTube, in folders, booklets, annual reports and all other communications. After this employment contract, the parties did not conclude a new employment contract, but the employment contract was tacitly extended. However, the fact that [claimant] remained employed by Coolblue after 7 March 2018 does not mean that [claimant] has given explicit permission for the (unlimited) use of his portrait right. Coolblue should have concluded a new agreement with [claimant] in which it should have re-established the portrait right. The letter dated 24 August 2018, as submitted by Coolblue, is insufficiently clear. 3.6.2
[claimant] has a reasonable interest in opposing the use of his portrait right. The use of the portrait of [claimant] on approximately 100 delivery vans and in a promotional video can be regarded as advertising. When using a portrait in an advertisement, the doctrine of the Discodanser judgment applies. The advertisement infringes the privacy of [claimant], which is in violation of Article 8 ECHR. Through the advertisement, [claimant] is associated with the Coolblue company. The public will think that the photo was not taken without the permission of [claimant] and will regard this as a token of public support for the product or service of Coolblue by [claimant]. [plaintiff] was fired on the spot and as a result of the dismissal, reports appeared in the media. As a result of this reporting, [plaintiff] is recognized on the delivery vans and is associated with Coolblue. [claimant] was also questioned by his successor employer about his previous work at Coolblue and the reason for his dismissal. [plaintiff] then had to look for a new employer. [plaintiff] no longer wishes to be associated with Coolblue and to leave the dismissal behind him. This is not possible now that Coolblue still uses the portrait of [claimant]. The commercial interest of Coolblue does not outweigh the infringement that the photos make on the privacy of [claimant]. 3.7
Secondly, [claimant] takes the position that under the General Data Protection Regulation (hereinafter: AVG) [claimant] should have been asked for renewed permission for the publication of his portrait and Coolblue should have exercised his rights and obligations in respect of the area of privacy should have been pointed out. 3.8
[claimant] considers it reasonable, in view of the duration and extent of the use of his portrait, which use still continues after termination of the employment contract, that he should be awarded compensation of € 25,000, plus the statutory interest. 4. The defense 4.1 Coolblue concludes that the claims of [claimant] should be dismissed, costs in law, and has therefore – summarized and insofar as relevant hereafter – argued the following. 4.2Coolblue is known for letting its own employees come back in its advertising. Coolblue employees are regularly invited to participate (during working hours) in photo shoots and video recordings for commercial purposes. However, it is always the employee's own choice whether or not to cooperate.4.3
[claimant] started working at Coolblue on 8 August 2017. In Article 5.8 of the employment contract, the parties have explicitly agreed that Coolblue may use image material with the portrait of [claimant] and that [claimant] waives his portrait right, including for the period after his employment. The employment contract was subsequently expressly, and therefore not tacitly, extended three times. The first time by signing a new employment contract on February 13, 2018 and the second and third time by letter. It is clearly stated in the relevant letters that the employment conditions of [claimant] remained the same. 4.4 On 4 January 2019, with the permission of [claimant], a professional photo shoot for the wrapping of the new electric delivery vans from Coolblue took place, to which [claimant] was happy to cooperate. Subsequently, [claimant] also cooperated in an online promotional video by Coolblue about the use of the electric delivery vans, which promotional video was published on YouTube on 5 March 2019. During his employment, [plaintiff] never objected to the use of his portrait and was enthusiastic and proud of his cooperation in the campaign. 4.5Coolblue disputes that there is a violation of the portrait right now that [claimant] himself has given permission for the use of his portrait on the delivery vans and in the promotional video and there is also no question of a reasonable interest within the meaning of Article 21 AW. 4.5.1 In the present case, [claimant] has given explicit as well as implicit permission for the making and disclosure of the images. The parties have explicitly agreed in the employment contract that Coolblue may use visual material with the portrait of [claimant], both for the duration of the employment and after it has ended. Since Coolblue also explicitly stated when the employment contract was extended that the same terms and conditions of employment would continue to apply, and [claimant] has not indicated that he cannot agree to this, the validity of the employment contract and the applicable employment terms and conditions are not affected. discussion. In addition, it also follows from the conduct of [claimant] that Coolblue could reasonably assume that [claimant] gave permission for his portrait to be published. At the beginning of 2019, and therefore after the extension of the first employment contract, [claimant] was asked to be portrayed and [claimant] cooperated in this. [claimant] was aware that the photos would be used on the new electric delivery vans, now that it was clearly stated during the briefing prior to the photo shoot, among other things, what the purpose of the photo shoot was. Now that delivery vans on which portraits of Coolblue employees were used were used since February 2016 at the same depot where [claimant] worked, [claimant] also knew what his permission meant. Despite this knowledge, [plaintiff] did not object during the photo shoot and he also cooperated with the promotional video afterwards. Even after the delivery vans were taken into use and the video was posted, [claimant] never objected to the use of his portrait in Coolblue's advertising until November 2020. A granted permission cannot be revoked afterwards due to a change of opinion. 4.5.2 In the event that it is judged that [claimant] has not given permission, it also applies that [claimant] has no reasonable interest in opposing the publication of his portrait. There is no expression such as was discussed in the Discodanser judgment, namely in which the portrayed person was associated with "a public atmosphere of eroticism and freedom of opinion". Moreover, in the present case, unlike in the relevant case, there was no question of using a portrait of the person portrayed “without permission”. After all, it has been established that [claimant] consented to the use of his portrait and that [claimant] only later, because of his dismissal, changed his mind and has not supported the publications since. In addition, the interest of [claimant] does not outweigh the interest of Coolblue. The publications have a positive image on [claimant] and [claimant] has worked for Coolblue. The fact that, and if so in what way, the publication of his portrait had adverse consequences for him, has not been sufficiently substantiated by [claimant]. On the other hand, granting the injunction claim will have far-reaching consequences for Coolblue. Coolblue, with the cooperation of [claimant], had 36 delivery vans made with the portrait of [claimant] on it. These buses have a long service life. There was no question of reusing the portrait of [plaintiff] in other advertisements. The delivery vans are used most of the day and 7 days a week for the Coolblue delivery service. Coolblue cannot simply discontinue the use of the buses. In such a case, the daily operation is seriously disrupted for a long time. A large part of the delivery service is temporarily suspended, orders cannot be delivered and the logistics will have to be adjusted. The costs for the new wrapping are unreasonably high and the impact on Coolblue's business operations is enormous. This is disproportionate in the circumstances of the present case. 4.5.3 Coolblue already meets the interests of [claimant] in the sense that the portrait of [claimant] on the 36 delivery vans will be adjusted and phased out in line with Coolblue's marketing policy and the lease duration, the portrait of [claimant] is not. is used in other/new communications and the promotional video on YouTube has since been removed. 4.6 Contrary to what [claimant] stated, it does not follow from the GDPR that Coolblue should have asked [claimant] again after the GDPR came into effect. The processing of the personal data of [claimant] was legally valid. In the present case, there is a legal basis for processing the personal data of [claimant]. The processing took place with the consent of [claimant], the processing is necessary for the execution of the agreement and Coolblue also has a legitimate interest in the processing of the personal data. 4.7Coolblue has not infringed the portrait right of [claimant] and has therefore not acted unlawfully. Coolblue also disputes that there is any damage on the part of [claimant] as a result of the photo or publication thereof. [Plaintiff] may experience negative feelings as a result of his instant dismissal, but this is separate from the publication and cannot be borne by Coolblue. [claimant] has not substantiated his damage, other than that "in view of the duration and extent of the use of his portrait" compensation of € 25,000 seems reasonable to him. With regard to the estimate of the size, this is based by [claimant] on "about a hundred delivery vans", while in reality it was only 36 delivery vans. With regard to the duration, [claimant] did not object to the use of his portrait for the first time until November 2020 and then only when the summons was issued. Furthermore, it has not been substantiated that the reputation of [claimant] has been violated. Insofar as this is the case, it also applies that this reputational damage is caused by the own conduct of [claimant] that led to the dismissal and not by the use of his portrait by Coolblue. In the event that a fee must be paid, it must not exceed €1,000. 4.8 The claimed cessation of disclosure cannot be granted because cessation of the use of the delivery vans with immediate effect is impossible and unreasonable for Coolblue. In the event that the use of the portrait has to be discontinued, Coolblue must be given a reasonable period of at least six months to do so. Imposing a penalty payment is not necessary, at least it should be moderated and maximized. 5. The assessment5.1 The central question in the present case is whether Coolblue has infringed the portrait right by using the portrait of [claimant] on its delivery vans and the visual material of [claimant] in the promotional video posted on YouTube. of [claimant] or has acted in violation of the AVG.5.2 The basic principle is that the person who is depicted in a portrait, without having given instructions to do so, on the basis of Article 21 AW against publication thereof by the copyright owner or a third party may object if he has a reasonable interest in doing so. However, if the person portrayed has given permission for the photo to be published, he has thereby waived invoking Article 21 AW. Consent is only granted if the person portrayed has expressly consented to the manner in which the photo has been published or must be deemed to have implicitly consented thereto. 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. 5.3 Whether permission should be deemed to have been granted and, if so, under what conditions, should be assessed on the basis of general contract law. In this regard, it comes down to the meaning that the parties could reasonably ascribe to each other's statements and conduct in the given circumstances.5.4 [claimant] stated that although the employment contract for the period from 8 August 2017 to 7 March 2018 it has been agreed that Coolblue may use image material with the portrait of [claimant] in advertising, and that [claimant] has renounced his portrait right, also for the period after his employment, but that for the period after March 7, 2018 has not given explicit permission for the (unlimited) use of his portrait right. 5.5On the basis of the documents submitted by Coolblue, it can first be established that, contrary to what [claimant] has stated, there has been no tacit renewal of the employment contract. After all, it follows from Exhibit 2 in the statement of defense that the parties signed a second employment contract for a definite period of time on 13 February 2018 and it has also not been disputed by [claimant] that he had read Coolblue's letters of 24 August 2018 and 19 October 2018, respectively, with which the has received the employment contract first for a period of eight months and then for an indefinite period. 5.6 It is presumed that, as also follows from what is stated in r.o. 5.2, permission for (the manner of) publication of the portrait by the person portrayed does not always have to be given explicitly, but this permission can also be implicitly derived, for example from the behavior of the person portrayed. On the basis of the documents submitted by the parties and what they have put forward, the subdistrict court judge is of the opinion that [claimant] can be deemed to have given his consent both implicitly and explicitly for the (method of) publication of his portrait in the advertisements. from Coolblue. The following is considered in this regard.5.7The consent of [claimant] to the publication of his portrait can in the first place be inferred from the circumstance that he signed the employment contracts, of which Article 5.8 forms part, on 22 June 2017 and 13 February 2018 respectively. . The employment conditions included in Article 5.8, from which it clearly follows that Coolblue wishes to use visual material with the portrait of [claimant] in its advertising and [claimant] waives his portrait right, also for the period after his employment are deemed to have been expressly agreed between the parties. Now that [claimant] has not disputed the receipt of the letters of extension dated 24 August 2018 and 19 October 2018, and it has not become apparent at any time that he acted against their contents, the Subdistrict Court is of the opinion that it is also sufficiently established that Article 5.8 continued to form part of the employment conditions applicable between the parties even after the expiry of the term of the second fixed-term employment contract. After all, it clearly follows from the renewal letters that the employment conditions applicable until then would remain the same. The fact that these letters are open to a different interpretation has not been sufficiently substantiated by [claimant]. 5.8 In addition to the circumstance that the (explicit) consent of [claimant] to the publication of his portrait can be derived from the employment conditions agreed between the parties, this consent can also be implicitly inferred from various behaviors of [claimant]. In that context, it is pointed out that it has been acknowledged by [claimant] itself that at the beginning of 2019, i.e. after the conversion of the employment contract into an employment contract for an indefinite period, he gave his permission for taking photos and appearing in a promotional video. It is also undisputed that the [petitioner] cooperated in this regard. It is important in this regard that Coolblue pointed out that it was completely clear to [claimant] prior to the photo shoot and film recordings what the purpose of this was and how the visual material with the portrait of [claimant] on it, would be used. To that end, it referred, inter alia, to a video fragment of the briefing that took place prior to the photo shoot submitted by it as Exhibit 7, as well as to the fact that the same depot where [claimant] had been working had been working since February 2016. delivery vans were in use on which portraits of Coolblue employees were used. That this was different has not been argued (by [claimant]) nor has it been proven. Coolblue's argument is also supported by the video fragment submitted by it as Exhibit 7, from which it follows that [claimant] was present at the briefing and that it was stated during the briefing that the photos would (partly) be used for the delivery vans of cool blue. After the briefing, [claimant] cooperated with the photo shoot and the promotional video and it has also not become apparent that after the delivery vans with his portrait and the placement of the promotional video on YouTube opposite Coolblue (unlike for the first time) on 20 November 2020) has expressed his objections in any way to this use of his portrait. On the basis of the aforementioned conduct, and taking into account that the visual material in itself has a positive appearance, the Subdistrict Court is of the opinion that Coolblue has sufficiently ascertained that [claimant] has given permission for publication of his portrait in the manner as made by Coolblue in its advertisements. 5.9 In this connection it is also important that it has not been stated or proven that the portrait of [claimant] has been used by Coolblue again and in other advertisements than (once) on the 36 delivery vans it mentioned and in the promotional video. Moreover, since [claimant] based his summons itself on 100 delivery vans, it has not become apparent that the number of delivery vans proposed by Coolblue in advance to [claimant] on which his portrait would appear was exceeded. Furthermore, the Subdistrict Court considers it important that although it is understandable that [claimant] no longer wishes to be associated with Coolblue because of (the manner of) the termination of his employment contract, but that any negative consequences of (the manner of) the termination of the employment employment find their cause in the own actions of [claimant] and in principle are separate from the (method of) publication of his portrait. The foregoing means that [claimant] is deemed to have waived the right to oppose publication on the basis of Article 21 AW. [Plaintiff]'s appeal to Article 21 AW cannot therefore succeed.5.10 [Plaintiff]'s appeal to the GDPR also fails. To this end, the following is considered. Photos and videos of a person can be classified under the scope of “personal data” within the meaning of Article 4 of the GDPR. The GDPR therefore entails a wide range of rights and obligations. These rights and obligations relate to data subjects when processing personal data by a processor or controller. An important requirement is that a processing basis is required for every processing of personal data. Processing is unlawful without a lawful basis. 5.11 The fact that in the present case permission has been given by [claimant] as referred to in Article 6 paragraph 1 sub a GDPR is no longer a lawful basis for the processing of his personal data since 20 November 2020, now that the authorized representative of [claimant] on this date has requested that the portrait and images of [plaintiff] be removed. With this, [claimant] apparently wanted to withdraw his consent to the processing of the data, which he is free to do at any time under Article 7(3) of the GDPR. 5.12Article 6(1)(f) of the GDPR provides that the processing of personal data may be lawful if it is necessary for the representation of a legitimate interest, unless the fundamental freedoms and rights outweigh this legitimate interest. The weighing of interests that must be made pursuant to Article 6(1)(f) of the GDPR is very similar to the weighing of interests as made in the context of portrait rights if the person portrayed has not given permission for publication (Article 21 AW); the balancing act between the right to respect for privacy (Article 8 ECHR) and the freedom of expression (Article 10 ECHR). 5.13 It follows from jurisprudence regarding portrait rights that when it comes to the use of a portrait without permission in an advertisement, the in principle the person portrayed will always have a reasonable interest in opposing the use of his portrait in support of a commercial advertisement. The portrayed will be associated by the public with the product or service in question, whereby the public will generally - and usually rightly - assume that the use of the portrait will not have taken place without the consent of the portrayed and the inclusion of will perceive the portrait in the advertisement as a token of public support for 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 privacy of the person portrayed (HR 2 May 1997, ECLI:NL:HR:1997:ZC2364), in this case [claimant ] .5.14 Coolblue has a commercial interest in advertising the products and services it offers, an interest that falls under the protection of Article 10 ECHR. Moreover, Coolblue has argued without being contradicted that - if it were no longer allowed to use the photo of [claimant] - the costs would be unreasonably high and the impact on its business operations would be enormous. Furthermore, it has been established without dispute that Coolblue has met the interests of [claimant] because the portrait of [claimant] on the delivery vans will be phased out, the portrait will not be used in other or new statements and the promotional video on YouTube has meanwhile been removed. . With all of the foregoing, in the opinion of the subdistrict court, Coolblue has raised a sufficiently legitimate interest, whereby under these specific circumstances the processing of the personal data is necessary (proportionately and alternatively) and when weighing up against the interests of [claimant] the can justify an invasion of his privacy. 5.15 In view of the foregoing, there is no infringement of the portrait right of [claimant], nor of other unlawful acts by Coolblue. There is therefore no basis for granting [the plaintiff]'s claims. 5.16
[Buyer] is ordered to pay the costs of the proceedings as the unsuccessful party. 6. The decision The sub-district court: rejects the claims of [claimant]; orders [claimant] to pay the costs of the proceedings, up to this judgment set on the part of Coolblue at € 996 in salary for the authorized representative. This judgment was rendered by mr. DL Spierings and pronounced in open court.495
