Rb. Amsterdam - C/13/663563 / HA RK 19-97
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| Rb. Amsterdam - C/13/663563 / HA RK 19-97 | |
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| Court: | Rb. Amsterdam (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 6(1)(f) GDPR |
| Decided: | 23. 12. 2019 |
| Published: | 4. 2. 2020 |
| Parties: | |
| National Case Number: | C/13/663563 / HA RK 19-97 |
| European Case Law Identifier: | ECLI:NL:RBAMS:2019:9887 |
| Appeal from: | n/a |
| Language: | Dutch |
| Original Source: | de Rechtspraak (in NL) |
The Amsterdam Court of First Instance rejected dentist's request to Google for the removal of search results which linked to his name when searching for his name. The Court ruled that in this case the interference with the plaintiff's right to privacy was justified by the overriding public interest in accessing information.
English Summary
Facts
The plaintiff is a dentist in Germany but he used to practice in the Netherlands, where he was registered with the BIG-register for healthcare professionals. Τhe Regional Health Care Disciplinary Boards in Amsterdam and Zwolle imposed disciplinary measures on him after complaints about his treatments. The plaintiff asked Google to remove all search results which linked to his name when searching for his name or the combination of his name and the search term "disciplinary law". Google removed some of them but refused to remove the rest claiming its legitimate interest under Article 6(1)(f) GDPR, the freedom of expression and the interest of the public in finding information online. The plaintiff on the other hand argued that he exercised his right to be forgotten on the basis of Article 17(1)(a) GDPR and Article 17(1)(c) GDPR and that the balancing test of the conflicting rights and interests should favor his rights and interests. He claimed that Google violated Article 12 GDPR by refusing to remove the links at stake without explaining the reasons why it did so in a transparent, concise and comprehensible form; these links reveal data relating to criminal convictions or otherwise sensitive data and require stricter protection under Article 9 GDPR and Article 10 GDPR, which Google violated.
Dispute
The Court had to assess whether Google had to remove all the links on the grounds of Article 17(1)(a) GDPR and Article 17(1)(c) GDPR or whether the exception of Article 17(3)(a) GDPR about the freedom of expression and information shall be applicable. The Court had to go through this balancing exercise.
Holding
The Court noted that, although it follows from the case law that the right to privacy and the right to the protection of personal data take precedence over the right to freedom of information when balancing interests, in this case the interference with the the plaintiff's right to privacy was justified by the overriding public interest in accessing the information. The Court pointed out that Google cannot be held responsible for the accuracy of the content of the webpages at stake, but on the other hand in its balancing test it cannot completely ignore this content. The Court found that the plaintiff failed to prove that this content was incorrect, irrelevant, excessive or outdated. Further, it confirmed Google's decisive argument that the plaintiff can be considered as a public figure, since he appeared on TV and joined public debates about aesthetic dentistry. Finally, the Court noted that there was no need to examine whether Google violated Article 12 GDPR.
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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.
DECISION
The parties will hereinafter be referred to as [applicant] and Google.
1 The procedure
1.1.
The course of the procedure is evidenced by
the application with productions 1-7, received at the Registry on 18 March 2019,
the amended application directed against Google Netherlands B.V., received at the Court Registry on 26 March 2019,
the parties' unanimous request of 18 June 2019 that the oral hearing should first deal with the formal questions in this case,
the letter of 30 April 2019 on behalf of [the applicant], together with a supplement to the application,
the interim decision of 9 May 2019 providing for an oral hearing,
the letter of 18 June 2019 on behalf of [the applicant] in which it was written that the parties have agreed that the application will be amended in the sense that the application is addressed exclusively to Google and not to Google Netherlands B.V. and that Google will voluntarily appear in the proceedings,
the defence with productions 1-23, received at the Registry on 24 June 2019,
the minutes of the oral procedure of 25 September 2019, together with the (procedural) documents referred to therein.
1.2.
The parties were given the opportunity to comment on the minutes of the oral procedure drawn up without their presence. Google made use of this opportunity by letter of 9 October 2019 and [the applicant] by letter of 10 October 2019. This decision is taken in the light of the comments submitted by the parties.
1.3.
The decision is adopted today. The court informed the parties of the postponed decision date.
2 The facts
2.1.
The applicant is a dentist and runs his practice from his clinic '[dental clinic]' in Germany. In addition, he has the practice " [dentist's practice] " in the Netherlands. The applicant has participated in the television programmes '[television programme 1]' and '[television programme 2]'.
2.2.
Previously, [the applicant] only operated a practice in the Netherlands. As from 17 March 2009, [the applicant] was registered as a dentist in the BIG register. He has recently deregistered from the BIG register. The BIG-register is based on the Healthcare Professions Act (hereinafter: the BIG Act). The BIG register contains all professionals listed as protective professions in the BIG Act.
2.3.
Google operates the Internet search engine Google Search. This search engine enables users to find information on the Internet. Users can enter a search query on Google's opening web page, for example http://www.google.nl or http://www.google.com, using one or more search terms, after which the search engine displays a page with search results. These search results consist of a combination of a title of a web page with the internet address of the web page, the Uniform Resource Locator (hereinafter: URL), and a snippet, a short summary of the web page (hereinafter: a search result). The selection and arrangement of the search results and their presentation to the user are the result of an automated, algorithmic process. The search engine indexes information published or stored on the Internet, stores it temporarily and makes search results available to Internet users in a certain order using search terms.
2.4.
By decisions of 28 October 2014, 22 May 2015, 14 August 2015 and 4 November 2016, the Regional Health Care Disciplinary Boards in Amsterdam and Zwolle have imposed disciplinary measures on [the applicant] as a result of complaints from patients about treatments that [the applicant] has carried out in the Netherlands. The Centraal Tuchtcollege voor de Gezondheidszorg dismissed [the applicant's] appeal against the decision of 28 October 2014, annulled the decision of 14 August 2015 and imposed a conditional suspension for a period of three months and partially annulled the decision of 4 November 2016 and imposed the warning measure. The disciplinary decisions were published in anonymised form on the website https://tuchtrecht.overheid.nl/. The measures imposed were published in the BIG register pursuant to the BIG Act. The BIG register can be consulted via the website https://www.bigregister.nl/.
2.5.
The BIG register states that on 6 July 2015 and 10 December 2015 a reprimand was imposed on [the applicant] due to incorrect treatment and/or incorrect diagnosis. Reprimands remain visible in the BIG register five years after the publication of the final decision of the disciplinary body. Furthermore, the BIG register states that a conditional suspension of three months from 21 July 2016 and a probationary period of two years have been imposed on [the applicant] due to incorrect treatment and/or incorrect diagnosis, incorrect declaration(s), provision of insufficient information and incomplete dossier formation. Conditional suspensions will remain visible in the BIG register after the publication of the final decision of the disciplinary body during the probationary period and five years after the end of the probationary period.
2.6.
When entering the first and last name (hereinafter: the name) of [applicant] or the name in combination with the search term 'disciplinary law' as a search in the search engine, a number of search results are displayed, leading to web pages published by third parties on which the disciplinary measures imposed on [applicant] are brought to the attention of the public. On the first page of the search results, a photo of [applicant] is also displayed.
2.7.
On 5 February 2019, Google requested (the lawyer of) the [applicant] to remove the search results resulting from searches made on his name or the combination of his name with the search term 'disciplinary' via the appropriate online web form. The request appeared at the following URLs:
https://www.sin-nl.org/doofpot/ [internet address] /
https://www.sin-nl.org/ [internet address] /
https://drimble.nl/gezondheid [internet address]
https://www.sin-nl.org/ [internet address] /
https://www.zwartelijstartsen.nl/ [internet address]
https://www.zwartelijstartsen.com/ [internet address]
https://www.bigregister.nl/binaries/bigregister/documenten/publicaties/ [internet address]
(The URLs are referred to below by the numbers mentioned above).
2.8.
By e-mail dated 11 February 2019, Google granted the request of [requestor] to remove URLs 5 and 7 and deleted the search results. With regard to URL 6, Google informed [the applicant] that this URL would not appear in a search in its name. With regard to URLs 1 through 4, Google has rejected the removal requests with the following notice:
"Having assessed the balance of relevant rights and interests relating to the content in question, including factors such as its relevance to your professional life, Google has decided not to block this content.
At this time, Google has decided not to take action on these URLs. (…)”
2.9.
In e-mails dated 14 February 2019 and 1 March 2019, (the lawyer of) [the applicant] asked Google once again to remove URLs 1 to 4 to www.sin-nl.org and www.drimble.nl. She pointed out that the website www.sin-nl.org is closely intertwined with the website www.zwartelijstenartsen.nl, the URLs of which have been removed by Google, so that the weighing of interests to be carried out by Google should lead to the same conclusion in both cases. Google did not do so.
2.10.
On 15 July 2019, [the applicant] requested Google to remove the .com variant of URL 5. On 16 July 2019 Google granted this request and removed the URL https://www.zwartelijstartsen.com/ [internet address] (hereinafter: URL 8).
3 The request and the defence
3.1.
The [applicant] requests the Court - after amendment of the application - to declare Google's decision to be provisionally enforceable:
I order that within ten days, or at least within a period to be determined by the Court, the search results linked to URLs 1 to 4 mentioned above under 2.7 be deleted and kept deleted;
II to order that the process of deletion of personal data be organised in such a way that once deleted links in respect of [the applicant] remain deleted and new, similar links do not appear;
III order that the costs of the proceedings be borne by the applicant.
3.2.
3.2. In summary, the [applicant] submits his application.
Primarily, [the applicant] submits that Google is in breach of Articles 9 and 10 of the GDPR, because the personal data relating to his disciplinary past must be regarded as criminal or special personal data. In support of this view he refers to the legislative history of the Personal Data Protection Act (Wbp), the case law applicable thereunder, the legislative history of the General Data Protection Implementation Act (UAVG) and the order of this court of 22 March 2018 (ECLI:NL:RBAMS:2018:3355). According to [the applicant], because of their specific and sensitive nature, disciplinary data have a different status from the processing of 'normal less sensitive' personal data. In view of this, Google's processing of its personal data is subject to a stricter regime and that processing is unlawful, because neither the grounds stated in Article 10 of the GDPR nor the exceptions stated in the UAVG apply. In so far as there is a public interest in accessing the data, the balancing of interests must be to the benefit of [the applicant], because the processing of personal data under disciplinary law has disproportionately adverse consequences for his work and private life, while his conviction relates to relatively minor offences in the distant past.
If the processing of [applicant's] personal data is not regarded as the processing of data under criminal law, then according to [applicant] the processing must be regarded as the processing of special personal data within the meaning of Article 9 of the GDPR. Disciplinary data do not belong to the 'normal' category of personal data and visitors can in view of the nature of the information and the photo of [applicant] made available via the URLs, deduce the ethnicity, race or origin of [applicant] from the personal data. There is no question of an overriding interest as referred to under g, paragraph 2 of Article 9 of the GDPR, so that a weighing up of interests would be to Google's disadvantage.
3.3.
In the alternative, [the applicant] invokes Article 17(1)(a) and (c) of the APC (the right to forgetting) with reference to the judgment of the Court of Justice of the European Union (CJEU) of 13 May 2014 in the Costeja case (C-131/12, ECLI:EU:C:2014:317, hereinafter: Costeja judgment), the judgment of the Supreme Court (HR) of 24 February 2017 (ECLI:NL:HR:2017:316, hereinafter: X/Google judgment) and the order of that court of 19 July 2018 (ECLI:NL:RBAMS:2018:8606). According to [the applicant], the personal data are no longer necessary for the purposes for which they were collected and there are no compelling legitimate grounds for processing them, because the information on the websites is damaging, inaccurate and not up to date.
According to [applicant], the balancing of interests should be to his advantage. The public can consult the BIG-register in which the disciplinary measures and the corresponding reason are registered and the disciplinary decisions are published online at www.tuchtrecht.overheid.nl. The legal basis of the so-called "black lists" is dubious. Via the URLs, information is made public in a highly biased, suggestive and insinuating manner. [applicant] suffers a great deal of inconvenience as a result and suffers damage both privately and in the exercise of his practice. In view of this, [applicant]'s right to privacy must prevail, according to [applicant].
Furthermore, [the applicant] claims that Google has violated Article 12 of the GDPR. According to [applicant], it is not possible to see why the balancing of interests led to a refusal of the request for removal of URLs 1 to 4 mentioned under 2.7, but to a grant of the request for removal of the search results that can be seen on www.zwartelijsten.nl or www.zwartelijsten.com (URLs 5, 6 and 8), whereas the same information is involved and the source pages of URLs 1, 2 and 4 refer to the removed search results. The explanation given by Google for this is insufficiently transparent, because it does not follow from this that Google believes it has a legitimate interest in displaying the search results.
3.4.
Google puts forward a defence and claims that the application should be rejected and that [the applicant] should be ordered to pay the costs of the proceedings. Very briefly, Google takes the view that there is no question of special or criminal data. According to Google, the processing of the personal data of [the applicant] is necessary for a legitimate interest within the meaning of Article 6(1)(f) of Google's GDPR in order to be able to offer an uncensored, reliable and useful search result via its search engine, the interest of the public to be able to find and consult information freely on the internet and the interests of internet users and the media to be able to publish information freely on the internet and to allow that information to be found. According to Google, these legitimate interests make data processing legitimate in principle.
3.5.
The points of view of the parties are discussed in more detail below, insofar as they are relevant.
4 The assessment
Jurisdiction and relative jurisdiction
4.1.
[applicant] is domiciled in Germany and Google is established in the United States of America (USA). Although there is no dispute on this point, the court of its own motion must assess whether the Dutch court has jurisdiction to take cognisance of [the applicant]'s application against Google. The Dutch court has jurisdiction because Google has appeared in these proceedings without contesting that jurisdiction (Article 9, opening words and under a Rv and Article 26 Brussels I bis Regulation). In view of the domicile of [the applicant], this court does not, in principle, have relative jurisdiction to take cognisance of his application pursuant to Section 262 opening words and under a of the Rv. However, at the hearing the parties stated that they opt for the relative jurisdiction of this court, so that this court also has relative jurisdiction to hear the application of [the applicant].
Applicable law
4.2.
The application of [the applicant] was made after 25 May 2018, so that the GDPR must be applied to the application. As an EU Regulation, the GDPR is directly applicable. The parties assume that the case can be decided on the basis of the standard formulated by the CJEU in the Costeja judgment, since that standard remains applicable under the GDPR. At the hearing, the parties made a choice of Dutch law, insofar as this is applicable in addition to the GCG.
The scope of the application
4.3.
At the hearing, [the applicant] stated that Google has in the meantime removed the link to URL 8 from the search engine's search results and that it no longer maintains its request to remove the search result indicated by URL 8.
4.4.
At the time of the hearing, URLs 1 and 2 were displayed in the search results after a search in the search engine on the name of [applicant] . At the hearing it appeared that URLs 3 and 4 do not appear in search results exclusively on the name of [applicant] , but after the addition of at least the search term 'disciplinary law'. A discussion arose between the parties as to whether URLs 3 and 4 fall within the scope of the GDPR. Google has argued that it does not process personal data with regard to URLs 3 and 4, because these URLs do not relate to searches exclusively to the name of [the applicant] .
4.5.
It follows from the Costeja judgment that the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (hereinafter: the Personal Data Directive), as implemented in the Personal Data Protection Act (hereinafter: the Wbp) and relevant for the application of the GDPR that replaced it, only applies insofar as the operations of the search engine can be regarded as processing personal data. This is the case, among other things, if this information contains data relating to an identified or identifiable natural person and the search engine operator is responsible for this data processing. According to the CJEU, these are the search results, which are displayed on the name of a person in the search engine after a query.
4.6.
It is not disputed between the parties that Google, by presenting information about [applicant] in the search results list that appears after searching on its full name in the search engine, processes personal data about [applicant]. The Costeja judgment does not support Google's view that the processing of personal data only occurs in the case of a search in the full name of a person in the search engine and not in the case of a search in the full name of a person in combination with a particular search term. Even if a search engine processes data which also contains data on identified or identifiable natural persons, this constitutes personal data within the meaning of Article 2(a) of the Personal Data Directive (see rov. 27 of the Costeja judgment).
A different assessment would lead to an artificial and unjustifiable distinction between the contested search results due to the specific circumstances of this case. In this case, URL 3 refers to partly the same information as URL 2 and URL 4 refers, inter alia, to URL 1 and information related to URL 2 (see also 4.15). The URLs therefore have a similar purport where the content is the same information. It appears from the request and the explanation given thereon during the hearing that the complaints of [the applicant] are mainly directed against the URLs that refer to www.sin-nl.org. The District Court will therefore include URLs 3 and 4 in the assessment of the application.
4.7.
As a result of the above, the assessment of [applicant's] application will focus on the search results indicated on the basis of URLs 1 through 4.
The assessment framework
4.8.
There is no indication in the GDPR's legal history that disciplinary personal details qualify as special or criminal personal details within the meaning of Sections 9 and 10 of the GDPR because of their nature. The court will therefore not apply the specific assessment framework that these articles entail in this case.
4.9.
Google claims to be able to base the processing of personal data on legitimate interests in the sense of article 6 paragraph 1 under f of the GDPR. This provision essentially requires that the processing of personal data is lawful only if it is necessary for the purposes of furthering the legitimate interests of the controller or of a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require the protection of personal data.
4.10.
Under Article 17(1)(a) and (c) of the GDPR, [applicant] has the right to obtain the erasure of his/her personal data if the personal data are no longer necessary for the purposes for which they were collected or if [applicant] has objected to the processing of personal data relating to him/her on the basis of Article 6(1)(f) of the GDPR in accordance with Article 21(1) of the GDPR and there are no overriding compelling legitimate grounds for processing. Article 17 paragraph 3 under a provides that paragraph 1 of Article 17 GDPR does not apply to the extent that processing is necessary for the exercise of the right to freedom of expression and information.
If the data controller does not accept the data subject's objection, the data subject may request an effective remedy in court (Article 79 of the GDPR and Article 35 of the UAVG). The court shall examine whether the controller has demonstrated that, in this specific case, his or her overriding legitimate interests outweigh the interests or fundamental rights and freedoms of the data subject. This assessment must be made on the basis of the facts and circumstances known at the time of the assessment.
4.11.
The articles of the GDPR must be interpreted in the light of the case law of the CJEU. It follows from the Costeja judgment cited above, as interpreted by the Supreme Court in the X/Google judgment also cited above, that if a search engine processes personal data and the data subject invokes the protection of his right to privacy, the court must weigh up the interests in the light of Articles 17 and 21 of the GDPR, where it follows from the considerations of the Costeja judgment of the CJEU that the fundamental rights of a natural person referred to in Articles 7 and 8 of the Charter (the right to respect for private life and the right to protection of personal data) generally outweigh, and thus take precedence over, the economic interest of the search engine operator and the legitimate interest of Internet users who may wish to access the relevant search results (see also CJEU 24 September 2019, C-507/17, ECLI:EU:C:2019:772, rov. 44 and 45). This may be different in particular cases, depending on the 'nature of the information concerned and its sensitivity to the private life of the data subject and the interest of the public in having this information at their disposal, which is determined in particular by the role this person plays in public life'. (see rov. 3.5.5. of the X/Google judgment). It also follows from case law that in the balancing of interests to be made, guiding criteria may be whether the search results are factually incorrect or, in view of all the circumstances of the case, are incomplete or irrelevant or excessive for the purpose of the processing.
4.12.
Furthermore, the ECLI:EU:C:2019:773 judgment of the CJEU of 24 September 2019 (C-136/17, ECLI:EU:C:2019:773) is relevant for the assessment of the application. In that judgment, the CJEU considered that the prohibition on the processing of special personal data and personal data relating to criminal law concerns only Google's own processing of special personal data as a search engine operator, in particular the display of a reference to a source page containing special personal data in the list of search results for a search in the name of the data subject. The operator is not responsible for the fact that special or criminal personal data appear on those source pages (CJEU GC and others /CNIL judgment, rov. 45-47).
4.13.
It also follows from this judgment that with regard to a deletion request related to search results referring to web pages containing special or criminal personal data, where the infringement of the fundamental rights of the data subject may be particularly serious due to the sensitivity of these data, a balance of interests must always be struck between the right to respect for private life and the right to the protection of the data subject's special or criminal data, on the one hand, and the right of access to public information and the freedom of expression of the person from whom that information originates, on the other hand. In view of the seriousness of the breach of the data subject's fundamental rights, it should be considered whether the inclusion of a link in the results list displayed following a search in the name of that person appears to be strictly necessary to protect the right to freedom of information enshrined in Article 11 of the Charter of Fundamental Rights of the European Union (the Charter) of Internet users potentially interested in accessing this webpage via such a search (CJEU GC and Others v. CNIL judgment, rov. 66-69).
The assessment of the content
4.14.
Although it follows from the case law cited above that the right to respect for private life and the right to protection of personal data take precedence over the right to freedom of information when balancing interests, in this case interference with the right to privacy of [the applicant] is justified by the overriding public interest in accessing the information. This is justified by the following reasoning.
4.15.
The search results indicated by means of URLs 1, 2 and 4 refer to various articles on the website www.sin-nl.org. The website is managed by the Stichting Iatrogene Nalatigheid-Nederland (hereinafter referred to as: SIN-NL) which states that it is committed to improving the position of victims of medical errors and the quality of health care. On the web pages of the URLs of SIN-NL referred to above, information about disciplinary measures from the BIG register, stating the name of [applicant], is linked to the anonymised disciplinary decisions about [applicant]. The relevant webpages also contain links that refer to articles about [applicant] on the website www.zwartelijstenartsen.nl, mention the BIG number of [applicant] and provide a (summary or integral) representation of the disciplinary decisions. Furthermore, the webpage of URL 1 shows a photograph of [applicant] and the webpage of URL 2 is an article about a new website of [person concerned] , which is mentioned in that article as a complainant in one of the disciplinary proceedings against [applicant]. The webpage of URL 2 also provides references to the website of [data subject] and to the webpage of URL 1. The web page of URL 3 concerns a web page of Drimble on which the first and partial second line of the article that can be consulted via URL 2 is displayed and mentions SIN-NL as its source. The web page of URL 4 concerns an article about one of the disciplinary decisions concerning [the applicant] and provides references to the web page of URL 1 and the aforementioned website of [the person concerned] . The photograph displayed as a search result is linked to URL 1 and refers to the web page of URL 1 and the photograph of [applicant] displayed thereon.
4.16.
The assessment is based on the assumption that [the applicant] has rightly pointed out that blacklists are controversial and that their lawfulness may be called into question. However, this case does not concern the lawfulness of the websites www.zwartelijstenartsen.nl and www.sin-nl.org, but whether the display of a reference to the source pages of these websites in the list of search results in a search in the name of [applicant] is justified. Google is not responsible for the information contained on those source pages (see the GC and Others /CNIL judgment of the ECJ cited above under 4.12.). However, the balance of interests to be made cannot completely ignore the content of the web pages referred to in the search results.
4.17.
4.17. The [applicant] has not sufficiently demonstrated that the reporting in URLs 1 to 4 is incorrect, irrelevant, excessive or outdated. First of all, it is important that the disciplinary information found is factually correct. It is not disputed that [the applicant] has been convicted in disciplinary proceedings because in his capacity as a dentist he was culpably negligent in his care towards patients, and that a number of reprimands and a conditional suspension of his BIG registration of three months were imposed on him. In addition, the terms used in the publications are not extremely tendentious, suggestive or sensational and do not relate to such hurtful qualifications or accusations. It is true that the webpage of URL 1 speaks of 'cover-up file' and the webpage of URL 2 of a 'clearly failing dentist', but that does not in itself - partly in view of the fact that the publications are for the rest mainly linked to the text of the BIG register and the disciplinary rulings - make the publications, as [applicant] has stated, show few forms of objectivity and are damaging. Also the explanation on the webpage of URL 1 about what is meant by strikethrough in the BIG-register and a professional ban, does not show any inaccuracies, but explains what the terms mean. Nor does the fact that the matter lies in the past make the information incorrect or outdated. Internet users will understand that the measures imposed in 2015 and 2016 do not necessarily reflect the current state of affairs.
4.18.
In addition, in view of the five-year visibility period for disciplinary measures in the MIG register (see 2.5.), the content of the publications is up to date. The publications relate to the professional conduct of [applicant] . Information on the private life of [applicant] is not included. It is likely that the private life of [applicant] will be adversely affected by the publications and the reference in Google's search results. However, his interests in that respect do not outweigh the public's interest in being able to inspect the information made available by Google in this case. Moreover, that information is displayed in a search results list with sufficient positive reports about the dental practice of [the applicant]. It has not turned out that the search results list has been arranged in such a way that the overall picture it paints for the internet user does not accurately reflect the current situation. It has therefore not been established that the search results are excessive.
4.19.
The decisive factor, however, is that [the applicant] - as Google has rightly argued - can be regarded as a public figure and therefore has more to tolerate than the average citizen. The [applicant] has chosen to play a role in the public debate on aesthetic dentistry by appearing in the television programmes " [television programme 1] " and " [television programme 2] " and by referring to well-known Dutch people as his patients. Furthermore, he is known for his services written about in various magazines. Contrary to [the applicant]'s contention, his performance in the television programmes cannot therefore be regarded merely as a marketing activity. In view of [the applicant's] public role, the disciplinary measures imposed are a relevant factor in the assessment by the public and (potential) customers of [the applicant]. Against that background, there is currently still an important public interest in continuing to find the relevant information about [the applicant]. The fact that the information is also available through consultation of the BIG-register - also in view of Google's substantiated argument that the search results make the information in the BIG-register findable - does not detract from this.
4.20.
4.20. In essence, the nature of the information concerned, the limited period of time since the imposition of the disciplinary measures, the fact that the publication period has not yet expired and the public interest in having this information at their disposal in view of the role that [applicant] plays in public life, are in this case so important and necessary to protect the freedom of information that the privacy interest and the right to protection of personal data of [applicant] must give way to the right to freedom of expression, including the interest of the Internet user served by Google. The request for removal of URLs 1 to 4 will therefore be rejected. As a result, there is no place either for granting [applicant's] request to organise the process of deletion of personal data in such a way that new, similar links do not appear. That request will also be rejected.
4.21.
What [the applicant] has submitted about the photograph displayed as a search result will be disregarded, since he has not submitted a request for removal of this search result, other than removal of the linked URL 1.
4.22.
Finally, [the applicant] has argued that Google has infringed Article 12 of the GDPR by not explaining its decision to reject the removal request in respect of URLs 1 through 4 (see 2.8) in a transparent, concise and comprehensible form. This position, and Google's response to it, will not be judged by the District Court, because [the applicant] has no legal consequences attached to it.
4.23.
4.23. The applicant will be ordered to pay the costs of the proceedings. The costs on Google's side are estimated to date:
- court fee € 639
- lawyer's salary € 1,086 (2 points × EUR 543 fee)
total € 1,725
The expenses shall be budgeted ex officio and shall be attributable in the manner stated in the decision.
5 The decision
The court
5.1.
Rejects the request,
5.2.
orders [the applicant] to pay the costs of the proceedings, assessed to date by Google at € 1,725,
5.3.
order [the applicant] to pay the costs arising after this order, estimated at €157 lawyer's salary, to be increased, subject to the condition that [the applicant] has not complied with the order within fourteen days of the date on which it was notified and that the judgment has subsequently been served, together with an amount of €82 lawyer's salary and the costs of service of the judgment,
5.4.
declares the cost orders under 5.2 and 5.3 enforceable on a provisional basis.
This order was issued by M.C.H. Broesterhuizen, Judge, and E.M. Rocha, Registrar, and pronounced publicly on 23 December 2019.
