Rb. Noord-Nederland - C/ 18/189406/HA ZA 19-6
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| Rb. Noord-Nederland - C/ 18/189406/HA ZA 19-6 | |
|---|---|
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| Court: | Rb. Noord-Nederland (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 5(1)(f) GDPR |
| Decided: | 15. 1. 2020 |
| Published: | 23. 1. 2020 |
| Parties: | NDC MEDIA GROUP E.G Vs. Anonymous |
| National Case Number: | C/ 18/189406/HA ZA 19-6 |
| European Case Law Identifier: | ECLI:NL:RBNNE:2020:247 |
| Appeal from: | n/a |
| Language: | Dutch |
| Original Source: | (in NL) |
15 January 2020, the District Court of the Northern Netherlands ruled that the disclosure of a municipality’s Personal Record databased (BRP) extract to a third party through a Facebook message constituted a loss of control of personal data and a breach of Articles 5(1)(f), 6 and 32(2) GDPR.
English Summary
Facts
The plaintiff asked from the Erasmus University Medical Centre Rotterdam (“EUMCR”) to provide her the DNA material of a person died in 2018 alleging that this person was her father. The deceased man had participated in a medical-scientific research at the EUMCR, prior to which he had filled in a “patient consent form”. According to this form, he expressed his wish that his body material would be treated confidentially. The EUMCR refused to provide the plaintiff the DNA material claiming that:
- there is no legal basis under which it is obliged to provide this material,
- the man’s wish had been expressed unambiguously, thus such a disclosure would contravene the GDPR and
- it is bound by professional secrecy.
Dispute
The Court had to balance the plaintiff’s right to personality which includes her right to know her parents and the right of the deceased man and his family to privacy which is here protected by the EUMCR’s duty of confidentiality.
Holding
The Court went through this balancing exercise and first invoked Recital 1 GDPR and Recital 4 GDPR and the definition of processing under Article 4(2) GDPR.
Then, it noted that according to Article 9 GDPR and Recital 35 GDPR genetic data must be protected as sensitive data. The man’s consent to processing was only referred to the purposes of the research he participated in. Further, none of the requirements in Article 9(2) GDPR is fulfilled.
The Court concluded that in this case the interest of the EUMCR must outweigh the plaintiff’s interest and the EUMCR must not provide her the DNA material.
The Court rejected the plaintiff's claim.
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English Machine Translation of the Decision
The decision below is a machine translation of the original. Please refer to the Dutch original for more details.
COURT OF NORTHERN NETHERLANDS
Private law department
Location Groningen
Case number / reel number: C/18/189406 / HA ZA 19-6
Judgment of 15 January 2020
in the matter of
1. the private limited liability company
[plaintiff 1] ,
based in Groningen,
plaintiff in counterclaim, defendant in counterclaim,
attorney Mr. J. F. Koenders, based in Groningen,
2. [plaintiff 2]
living at [residence] ,
plaintiff in convention,
attorney Mr. J. F. Koenders, based in Groningen,
by
1. the private limited liability company
NDC MEDIA GROUP E.G,
based in Leeuwarden,
defendant in convention,
attorney Mr. J.J. Gevers at Assen,
2. [defendant 2],
living at [residence] ,
accused in counterclaim, plaintiff in counterclaim,
attorney Mr. J.J. Gevers at Assen.
The parties will hereinafter be referred to as [plaintiff 1] , [plaintiff 2] , NDC Mediagroep and [defendant 2].
The procedure
1.1.
The course of the procedure is evidenced by
-
the indictment of December 11, 2018;
-
the deed of submission of productions of 9 January 2019;
-
the conclusion of response in convention also requirement in counterclaim of 20 February 2019;
-
the conclusion of reply in counterclaim also conclusion of reply in counterclaim of
1 May 2019;
-
the conclusion of the rejoinder also the conclusion of the counter-rejoinder of
June 26, 2019;
-
the conclusion of rejoinder in counterclaim of 7 August 2019.
1.2.
Finally, a judgment has been rendered.
2 The facts in counterclaim and counterclaim
2.1.
The court shall assess the dispute on the basis of the following facts which are established, because those facts have been established on the one hand and have not been contradicted or have not been sufficiently contradicted on the other hand.
2.2.
Plaintiff 1] is a company that is engaged, inter alia, in the purchase and sale, rental and leasing of real estate. Claimant 2] is the sole shareholder of [Claimant 1]. The sole director of [plaintiff 1] is Mr [name A] (hereinafter [name A]).
2.3.
NDC Mediagroep is a newspaper publisher, including the newspaper 'Dagblad van het Noorden', and also operates the Groningen city blog Sikkom.nl ('Sikkom'). defendant 2] is a journalist and works for Sikkom.
2.4.
On 7 November 2018 an article was posted on the Sikkom website about [plaintiff 1] and [plaintiff 2] , entitled "Tenants of [plaintiff 2] have to walk kilometres for expensive and full parking spaces". The article was written by [defendant 2] and has the following content:
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
2.5.
Previous article is also posted on the Facebook page of Sikkom. In addition, [defendant 2] shared on his personal Facebook page a publication with the headline "Tenants of [plaintiff 2] have to walk kilometers for an expensive and full parking spot", with the text "The umpteenth scandal in the Groningen rental sector", after which there is a reference to the mentioned publication on the Sikkom website.
2.6.
On the website of the Dagblad van het Noorden an article was published on 7 November 2018 about [plaintiff 1] and [plaintiff 2] with the title "Kilometers walking for parking space at rented accommodation". The article was written by [defendant 2] and has the following content:
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
2.7.
The previous article was also published in the paper version of the Dagblad van het Noorden on 8 November 2018.
2.8.
On or about November 8, 2018 [defendant 2] published a message on his personal Facebook page in which a video was posted with the text "Stadhuis koketteert met [plaintiff 1] , terwijl het bedrijf misleidt, oplicht, intimidatie en bedreiging" (City Hall is coquetting with [plaintiff 1] , terwijl het bedrijf mislekt, oplicht, intimidatie en bedreiging).
2.9.
Between [plaintiff 1] in the person of [name A] and NDC Media Group in the person of [defendant 2] prior to the publications of November 7 and 8, 2018, as of November 7 and 8, 2018.
e-mail corresponded. On 31 October 2018, [name A] sent an e-mail to
NDC Media Group, which states, in so far as relevant here:
I understand from my employees that you would like to contact me. By means of this e-mail I let you know that I have no need to speak to you orally. If you have any questions for me, please let me know by e-mail. I would also like to let you know that you do not need to approach my employees at the office. And in view of my busy schedule and the many appointments, you do not have to come to my office in person either.
2.10.
On the above-mentioned e-mail [defendant 2] has reacted by e-mail of November 1, 2018. In that e-mail it says, as far as relevant here:
I have a number of questions about the couple rental with houses and parking spaces. I have spoken to several tenants and agencies. I have reviewed contracts and statements. For example, I also heard audio fragments in which [plaintiff 2] himself confirms a number of things. I put all that information in the article below. This piece appears on Sikkom and in Dagblad van het Noorden. We would like to receive your reaction to our findings in the near future.
Here follows the draft article.
2.11.
By return e-mail, [name A] responds, as far as relevant here, as follows:
I received your e-mail in good order, because of my many meetings today, I will send you a substantive (counter)response to the findings below tomorrow. Nevertheless, I would like to point out that findings are mixed up and that you have been misinformed.
2.12.
By e-mail of November 2, 2018 (11:58 a.m.) [defendant 2] then asks:
Can you give me some indication of what time you will send a response? Then I can take this into account in the planning. If you would like to do so before 4:00 p.m. this afternoon, you can include it in tomorrow's newspaper.
2.13.
[name A] reply by e-mail dated November 2, 2018, stating:
Further to my email of yesterday afternoon, I will inform you as follows. After reading your article, I would like to presuppose that you have apparently been misinformed and that you are shouting at random. That is shocking. It is even shocking to read that you are able to put all kinds of untruths on paper and thus think you can mislead the public. Apparently, you're only interested in sensational journalism and we're not working on that.
I am very disappointed with your organization, the Dagblad van het Noorden and
NDC media group, that you act this way. If you are of the opinion that you think you can unfairly put us in a bad light in this way, then you must seriously consider that all damage caused by this will be recovered from you. Do you want to take good note of this?
Claimant 1 and its employees have nothing to do with what you cite in your article. Incidentally, you could have noted this if you had conducted the correct investigation. For the rest, I am abstaining from any comment and we dispute the content of your article. That content is absolutely contrary to reality!
2.14.
On November 4, 2018 [defendant 2] sent an e-mail to [name A], in which, as far as relevant here, is written:
Would you please respond to the last e-mail? Especially if you find that it contains untruths, it is important to say this right. That's why I'm doing my very best to counter it.
At the same time I have spoken to many tenants who confirm this lecture. There are even recordings made in which [plaintiff 2] indicates that it is not the intention to use the parking space on day one. So I am very curious about what is not right. Even if it does become a case, which you suggest, it is advisable to answer the questions. (…).
2.15.
[name A] responded as follows by e-mail of 5 November 2018:
I gave you a clear response in my email of 2 November. Also in your email of yesterday afternoon you keep coming up with untruths. If you had done thorough research, you could come to the conclusion that [plaintiff 1] does not rent living spaces with a parking space. You could also have established that Mr. [plaintiff 2] is not employed by us, and therefore cannot speak on our behalf. If you have questions about or for Mr. [plaintiff 2], you do not have to be with us.
Furthermore, we have decided not to respond any more and we maintain all that was mentioned in our message of November 2nd last. Further requests/releases will therefore not be responded to.
As mentioned earlier, [plaintiff 1] and its employees have nothing to do with what you mention in the article.
2.16.
Subsequently, [defendant 2] has answered by e-mail of November 6, 2018 (11:35 a.m.) as follows:
I really don't understand anything about your reaction. We have seen contracts, read statements to the Rent Commission and talked to tenants. All of this shows that [plaintiff 1] is saddling tenants with parking spaces that are of no use to them, and you deny that now?
Then I know enough. I've done my very best to argue the case. Then the article goes to the paper and online.
2.17.
And later that day by 4:45 p.m. e-mail:
I'd still like to speak with you or Mr. [plaintiff 2]. Documentation and testimonies show conclusively that you link parking spaces to the rental of houses. Contrary to what you state in the e-mails.
Therefore a last attempt to get in touch with you or the shareholder. With your denial against the evidence, the story only becomes more remarkable.
2.18.
On behalf of [plaintiff 1], NDC Mediagroep was requested by letter of 8 November 2018, addressed to [defendant 2] , to immediately stop causing riots. Furthermore, in the aforementioned letter, NDC Mediagroep and [defendant 2] have been held liable for the damages incurred.
2.19.
On 27 November 2018 an article was posted on Sikkom about [plaintiff 1] and [plaintiff 2] with the title " [plaintiff 1] sues us, but withdraws at last minute". The article was written by [defendant 2] and has the following content:
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
2.20.
Previous article is also posted on the Facebook page of Sikkom.
2.21.
Between [name A] and NDC Mediagroep, prior to the publication of
27 November 2018 corresponded by e-mail. On November 27, 2018 (11:59 a.m.), [defendant 2] sent an e-mail to [plaintiff 1] (addressed to [name A] ), stating, as far as relevant here:
Yesterday I received the unfortunate news that you withdrew the interlocutory proceedings. (...) I myself can guess why the case did not proceed. All I have to do is take a look at the contracts and statements of the tenants. Or listen to one of the audio fragments.
But still, because of a follow-up article, I am very curious as to why you withdrew the case. Also because you accuse me of not sufficiently verifying the cases.
(…).
2.22.
By e-mail dated 27 November 2018 (13:27), [plaintiff 1] (in the person of [name A]) responded as follows, in so far as relevant:
When you send me the audio fragments, we will give you a response. I also inform you that we have not stopped the legal proceedings against you and the NDC media group. We will continue the entire case in proceedings on the merits and we will also bring a case before the journalism council.
(…).
2.23.
By e-mail of 27 November 2018 (13:35 hours), NDC Mediagroep (in the person of [defendant 2]), insofar as relevant here, will respond:
I am not sending you the fragments for source protection reasons. However, I would like to send you a transcript. The question remains, and that has nothing to do with the sound fragments, why are you withdrawing the summary proceedings two days before the hearing? (…).
2.24.
By e-mail dated 27 November 2018 (13:43) [plaintiff 1] (in the person of [name A] responds:
When you send me a transcript of all sound fragments in your possession, we will respond.
2.25.
By e-mail of November 27, 2018 (13:45 hrs.) NDC Mediagroep (in the person of [defendant 2]) responds:
I do not want a response to the audio fragments, I would like to know why you withdrew the interlocutory proceedings. That is completely separate from the fragments.
2.26.
By e-mail of November 27, 2018 (14:33 hours) [plaintiff 1] (in the person of [name A] ) responds to this:
As I have previously informed you, we have converted the application for interim measures into proceedings on the merits, that is the reason.
You would like to hear both sides of the argument, but this way it will be difficult if you don't let us hear or read audio fragments.
I expect from you by return the promised transcripts of the audio fragments.
2.27.
By e-mail of November 27, 2018 (14:56 hrs.) NDC Mediagroep (in the person of [defendant 2] ), replies:
I only wanted to know why the summary proceedings were withdrawn. But the reason is because it has been converted into proceedings on the merits. And with those proceedings in mind, I will of course not hand you our evidence.
2.28.
[name A] has sent a message via Facebook to a third party whereby personal data of [defendant 2] , without his permission, have been provided to that third party.
3 The dispute in convention and counterclaim
3.1.
Plaintiff 1] and [Plaintiff 2] claim by convention:
1. Order the defendants jointly and severally to produce the following publications within
24 hours after the verdict to be given on the websites of the Dagblad van het Noorden and Sikkom.nl and on the Facebook pages of Sikkom.nl and Mr. [defendant 2] , including all reactions to these publications, to be removed and kept removed:
- The publication on the Sikkom.nl website with the headline 'Tenants of [plaintiff 2] must walk kilometres for expensive and full parking space';
- The publication on the website of the Dagblad van het Noorden with the headline 'Miles walking for parking space in rental properties';
- The publication on the Facebook page of Sikkom.nl with the headline 'Tenants of [plaintiff 2] must walk kilometres for expensive and full parking space';
- The publication on the personal Facebook page of Mr. [defendant 2] with the text 'The umpteenth scandal in the rental sector in Groningen', after which there is a reference to the mentioned publication on Sikkom.nl;
- The publication on the personal Facebook page of Mr. [defendant 2] , meaning that the text and a video on which at the end a message can be read with the text 'Stadhuis koketteert met [plaintiff 1] , terwijl het bedrijf misleidt, oplicht, intimidatie en bedreigt' (City Hall is coquetting with [plaintiff 1] , while the company misleads, scams, intimidates and threatens);
- The publication on the website Sikkom.nl with the headline ' [plaintiff 1] sues us, but withdraws at the last moment';
- The publication on the Facebook page of Sikkom.nl with the headline ' [plaintiff 1] sues us in court, but withdraws at the last minute'; The publication on the Facebook page of Sikkom.nl with the headline ' [plaintiff 1] sues us in court, but withdraws at the last minute'.
2. Order the defendants jointly and severally, within 24 hours after the judgment to be rendered, to add to the text of the Sikkom.nl website on the home page, in a striking banner or box at the top, and to keep it there for fourteen days, without further comment, in the same font and font size as the headings of the website, but in bold and with the word 'rectification' in red:
'RECTIFICATION
On this website, [plaintiff 1] , also acting under the name [plaintiff 1] , and Mr. [plaintiff 2] were wrongly associated with scamming, misleading, blackmailing, intimidating and threatening. In addition, there are a number of quotations from Mr. [plaintiff 2] which he is alleged to have made concerning rent and rent allowance. The District Court of Noord-Nederland, Groningen location, has now ruled that the accusations made are unlawful and that the quotations made by Mr. [plaintiff 2] are incorrect. The District Court of Noord-Nederland, location Groningen, has ordered the accusations to be removed and this rectification to be made'.
3. With regard to the Facebook page of Sikkom.With respect to the Facebook page of Mr. [defendant 2], within 24 hours after the judgment to be rendered, to order the defendants jointly and severally, and with respect to the Facebook page of Mr. [defendant 2], to place or have placed, within 24 hours after the judgment to be rendered, on the Facebook page in question, in a striking banner or striking frame at the top, and to keep it there for fourteen days, without further comment, in the same font and font size as the previously placed publication(s) to be rectified, but in bold and with the word 'rectification' in red, the same text as mentioned under two, replacing the word 'website' with 'Facebook page';
4. Order the defendants jointly and severally, within 24 hours after the judgment to be rendered, to add to the text of the website of the Dagblad van het Noorden on the home page, in a striking banner or box at the top, and to keep it there for a fortnight, without further comment, in the same font and font size as the headings of the website, but in bold and with the word 'rectification' in red:
'RECTIFICATION
On this website, [plaintiff 1] , also acting under the name [plaintiff 1] , and Mr. [plaintiff 2] were wrongly associated with scamming, misleading, blackmailing, intimidating and threatening. In addition, there are a number of quotations from Mr. [plaintiff 2] which he is alleged to have made concerning rent and rent allowance. The District Court of Noord-Nederland, Groningen location, has now ruled that the accusations made are unlawful and that the quotations made by Mr. [plaintiff 2] are incorrect. The District Court of Noord-Nederland, location Groningen, has ordered the accusations to be removed and this rectification to be made'.
5. To order the defendants jointly and severally, within 24 hours after the judgment to be rendered, to place in the paper version of the Dagblad van het Noorden on the same page as the previously placed page to be rectified, in the same font and font size as the earlier publication, but in bold, without adding any further comment, the same text as mentioned under four, replacing 'On this website' by 'In the edition of 8 November 2018';
6. Order the defendants to submit a request (or have a request submitted) to Internet search engine Google, within 24 hours after the judgment to be rendered, to remove (or have removed) the publication mentioned under 1. and all references to it from the search results of these search engines as well as from their 'cache memory', simultaneously sending a copy of the requests concerned to the plaintiffs' lawyer;
7. Prohibiting defendants, jointly and individually, from making negative statements about plaintiffs in any way and through any medium;
8. To determine that defendants jointly and severally forfeit penalty payments of
€ 1.000,--, or at least an amount to be determined in good court, per day for each day, including part of a day, that they fail to comply with one or more of the aforementioned convictions and/or orders, or fail to comply in full and/or in time, per violation;
9. Declare that the defendants have acted unlawfully;
10. To order the defendants jointly and severally to pay damages, to make payments to the state and to settle according to the law;
11. Order the defendants jointly and severally to pay an advance amount in connection with the damage suffered by the plaintiffs, in the amount of € 2,500;
12. Order the defendants jointly and severally to pay the costs of the proceedings.
3.2.
To this end, [plaintiff 1] and [plaintiff 2] state, in summary, that the publications contain erroneous accusations and do not find sufficient support in the available factual material. According to [plaintiff 1] and [plaintiff 2], defendants should therefore not have published the publications. Moreover, according to [plaintiff 1] and [plaintiff 2], the publications wrongly establish a link between [plaintiff 1] and [plaintiff 2] and deceive, blackmail, intimidate and threaten. The publications are therefore unlawful and must be rectified, according to [plaintiff 1] and [plaintiff 2]. In addition, [plaintiff 1] and [plaintiff 2] state that no, or at least insufficient, inter partes hearing has taken place and that more care could be expected.
Plaintiff 1] and [Plaintiff 2] further state that their honor, good name, credibility, integrity and reputations have been harmed. Pursuant to Article 6:106 of the Dutch Civil Code (BW) they are entitled to compensation, according to [plaintiff 1] and [plaintiff 2].
3.3.
NDC Mediagroep and [defendant 2] put forward a defence and conclude that
declare [Claimant 1] and [Claimant 2] inadmissible in their claims or deny them the claims, and order [Claimant 1] and [Claimant 2] to pay the costs of the proceedings. To this end they argue, in summary, that [defendant 2] has never acted in its own title. It is always Sikkom who has made the statements, [defendant 2] is not a party to these proceedings, according to NDC Mediagroep and [defendant 2]. According to NDC Mediagroep and [defendant 2] the claims against [defendant 2] must therefore be rejected. Furthermore, NDC Mediagroep and [defendant 2] argue that the subjects and positions taken in the publications are supported by the available factual material, so that there is no reason to rectify and/or compensate. Moreover, NDC Mediagroep and [defendant 2] contest the fact that damages have been suffered. In addition
NDC Mediagroep and [defendant 2] argue that in this case the freedom of expression under Article 10 of the European Convention on Human Rights (ECHR) should prevail over Article 6:162 of the Dutch Civil Code.
3.4.
defendant 2] claims in counterclaim:
1. Declare that [plaintiff 2] has acted in violation of article 6 of the AVG towards Mr. [defendant 2] and has thereby acted unlawfully;
2. Order plaintiff 2] to provide Mr. [defendant 2] with a complete list of names and addresses of persons or parties to whom [plaintiff 2] has provided the extract from the BRP of Mr. [defendant 2] within 2 weeks after service of an order to that effect on Mr. [defendant 2];
3. prohibit plaintiff 2] from disclosing the personal data of Mr. [defendant 2] to third parties;
4. Order plaintiff 2] to compensate the damage suffered by Mr. [defendant 2] for the amount of € 750,- based on article 6:162 of the Dutch Civil Code;
5. Declare that plaintiffs shall jointly and severally forfeit a penalty payment of
€ 500.00 per day and for each day that plaintiffs fail to comply with the prohibition claimed under 2 or act in violation of the prohibition claimed under 3, all this with an order that [plaintiff 1] and [plaintiff 2] pay the costs of the proceedings.
3.5.
To this end, [defendant 2], in summary, states that [name A], in his capacity as director of [plaintiff 1] , has provided the address details of [defendant 2] to third parties without his consent. Plaintiff 1] has thereby acted in violation of Article 6 of the General Data Protection Regulation (AVG) and that constitutes a wrongful act as a result of which [defendant 2] has suffered damages, according to [defendant 2].
3.6.
Plaintiff 1] puts forward a defence and concludes that NDC Mediagroep and [defendant 2] are declared inadmissible, or at least that the claims are rejected, all this with an order to NDC Mediagroep and [defendant 2] to pay the costs of the proceedings. Plaintiff 1] claims, in summary, that [name A] acted in its own name and not in the capacity of director of [Plaintiff 1]. Furthermore, plaintiff 1 contests that [defendant 2] has suffered damages.
