Gerechtshof Amsterdam - 200.248.187/01
| GHAMS - 200.248.187/01 | |
|---|---|
 | |
| Court: | GHAMS (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 17 GDPR |
| Decided: | 23.06.2020 |
| Published: | 06.07.2020 |
| Parties: | |
| National Case Number/Name: | 200.248.187/01 |
| European Case Law Identifier: | ECLI:NL:GHAMS:2020:1802 |
| Appeal from: | Rechtbank Amsterdam (Netherlands) C/13/636885 / HA RK 17-301 |
| Appeal to: | Rejected Hoge Raad (Netherlands) 20/02950 |
| Original Language(s): | Dutch |
| Original Source: | Rechtspraak.nl (in Dutch) |
| Initial Contributor: | n/a |
The Court of Appeal of Amsterdam held that Google did not have to erase the search result on a surgeon who had been subject to a disciplinary procedure, pursuant to Article 17 GDPR, because the interests of Google and third parties outweighed the data subject's interests.
English Summary
Facts
The controller is Google and the data subject is a plastic surgeon. One of data subject's patients filed a complaint against data subject in 2014 for a lack of aftercare after an operation. This led, ultimately, to a procedure before the Central Disciplinary Tribunal for Health Care, of which the result was that data subject was conditionally suspended for a period of four months, with a probationary period of two years. Now, when googling the data subject's name, links to certain websites (www.zwartelijstartsen.nl and www.drimble.nl) appeared between the search results. These links referred to articles that mentioned the data subject's name, their BIG number (unique identifier for health care personnel), their speciality, and the ruling of the Disciplinary Tribunal which led to the data subject's suspension.
In 2017, the data subject requested Google to remove the links. Google rejected this request and stated that the URLs in the search results were justified by the essential interest of the general public to have access to them. The data subject then brought the issue to Court, and the Court of First Instance upheld their claim. Google then filed for appeal.
Holding
The Court of Appeal conducted a balancing test pursuant to Article 21 GDPR, and found that Google's interests and that of third parties, outweighed the data subject's interest. Hence, the right to freedom of information of Google and third parties outweighed the right to privacy and protection of personal data of the respondent. In this regard, the Court considered that established case law (GC and others, and CJEU Costeja), in which it is stated that, in principle, the public's right to freedom of information must give way to the right to privacy and protection of personal data. However, according to the Court, in this case there were special circumstances, because of which the interests of the data subject did not outweigh the interests of Google and third parties.
Firstly, because the doctor treats a vulnerable group of patients with few treatment options, who should have easy online access to information about the advantages and disadvantages of their doctor. Secondly, the BIG register, which contains a record of measures imposed on a doctor, is hardly ever consulted by patients in practice. In addition, the BIG Act does not contain any rules on what third parties are allowed to publish or find about disciplinary measures. Finally, according to the Court of Appeal, the inclusion of the doctor on the 'black list' of SIN-NL, to which the search results refer, is recent, relevant, factual, not unnecessarily hurtful and current. Therefore, Google does not have to delete the search results.
Lastly, the data subject argued that their request must be assessed on the basis of Article 10 GDPR because the search results refer to disciplinary measures concerning her. Such measures, according to the data subject, fall within the scope of Article 10 because of the broad interpretation of "personal data of a criminal nature" as is referred to in Article 1 of the Act Implementing the AVG (UAVG). The Court of Appeal rejected this argument and stated that this broad definition does not incorporate disciplinary measures. However, the Court noted, even if this were the case, this would not have led to another conclusion since the interests of Google and third parties still would have outweighed the data subject's right to privacy and personal data protection.
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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.
