Rb. Noord-Nederland - C/18/190912/HA RK 19-19
| Rb. Noord-Nederland - C18/190912 HA RK 19-19 | |
|---|---|
 | |
| Court: | Rb. Noord-Nederland (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 6(1)(f) GDPR Article 10 GDPR Article 17 GDPR Article 21 GDPR |
| Decided: | 12. 12. 2019 |
| Published: | 17. 12. 2019 |
| Parties: | Anonymous GOOGLE LLC |
| National Case Number/Name: | C18/190912 HA RK 19-19 |
| European Case Law Identifier: | ECLI:NL:RBNNE:2019:5169 |
| Appeal from: | |
| Appeal to: | |
| Original Language(s): | Dutch |
| Original Source: | de Rechtspraak (in Dutch) |
| Initial Contributor: | n/a |
The District Court of First Instance of the Northern Netherlands rejected plaintiff's request to Google for the removal of search results which linked to pages about his criminal history 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 that information.
English Summary
Facts
On 1 December 2006 plaintiff was arrested and charged of murdering an 8-year old boy. The first conviction was on 6 September 2007 and after multiple appeals on 22 may 2012 the final verdict was 11 years and 7 month prison followed by an involuntary commitment. The European Court of Human Rights rejected the application he made there. During the whole time, there was a lot of media coverage about this case and all proceedings. On 24 May 2015 the involuntary commitment started, and it has been extended with two years twice on 2 June 2017 and 29 May 2019. There was also media coverage about these extensions.
When searching using Google search for the name of plaintiff, a lot of search results are found with publications about the crime he committed and the legal proceedings afterwards. After a request, Google removed 100 search results, but denied to remove 82 other results. It explained that with: "It is Google's understanding that the information about your client on these URL's - with regard to all the circumstances of the case we are aware of - is still relevant in relation to the purposes of data processing, and therefore the reference to this document in our search results is justified by the public interest."
Dispute
Plaintiff
The search results include information about criminal convictions and background of the crime. Based on Article 10 GDPR data processing about criminal convictions is only allowed under the control of an official authority. Data processing would also be allowed if processing is authorised by Union or Member State law, but this does not apply. Based on this, Google may not process this data. Article 32 GDPR and Article 33 GDPR also cannot justify the processing.
Based on CJEU - C-131/12 - Costeja, Hoge Raad - 15/03380 and Article 17 GDPR a weighing of the interests should take place as defined in the Costeja ruling.
Applicant's right to privacy shall normally outweigh Google's economical interests.
In this case applicant's right to privacy shall prevail because information about a crime committed 12 years ago is not relevant any more. Every month, there are just 110 searches made about this case. Applicant is released from prison, and want to start a new life. This becomes impossible because of these search results. Applicant is not a public figure, but even if he is, the public does not need this particular information any more. There is no longer a discussion about the conviction of applicant.
The search results make it difficult for applicant to find a job. Employers use Google to find information about applicants. This causes him to limit the jobs he can find. The only relevant information could be the extension of the involuntary commitment, but the public discussion about problems related to involuntary commitment should not hurt him.
Not only the current list of URL's should be considered, but Google must also be forced to remove all future search results.
Defendant
Based on Article 17 GDPR and Article 21 GDPR it is only possible to request to delete specific search results, because a weighing of the interests must be made for every search result.
The right to be forgotten can only be based on Article 17 GDPR and/or Article 21 GDPR. In this case this does not apply.
Applicant bases his request on Article 10 GDPR. The goal of article 10 was never forbid search engines to process any special categories of personal data. Based on CJEU - C-136/17 - GC et al v. CNIL, a weighing of the interests must also be made for special categories of personal data. Article 17(3)(a) GDPR contains an exception to protect the freedom of expression and information which also applies to personal data relating to criminal convictions and offences. The balancing of interests is to his disadvantage. Applicant does not point to any wrong information found on the pages linked to in the search results. So the data processing by Google is correct. Because of the seriousness of the crime for which he was convicted, the extent to which that crime shocked society, the fact that his criminal trial has been subject of public debate in several instances and the fact that the criminal case has been reported by many media, it is logical and balanced that a large proportion of the search results relate to the crime committed.
There is a public interest in finding information about the crime committed by the applicant. The seriousness and severity of the crime committed by the applicant, as well as the subsequent investigations, indictments and convictions have resulted in almost all Dutch media and also some foreign media reporting about him. The murder of the victim has become an act of history. As opposed to "right to be forgotten" there is also a "right to remember". Applicant is a public figure. His fame is a direct and inevitable consequence of his own actions. Applicant wrongly claims that the public no longer has an interest in the contested information because there is no longer a public debate about his conviction and because the crime took place 12 years ago. However, the public has an interest in information about current and recent criminal cases, but also in information about known criminal cases that lie further in the past. Moreover, in 2017 and 2019, many more news items were published about the extension of the term of applicant's involuntary commitment. Applicant is still in a forensic position. In 2021, a new assessment will be made as to whether the term of applicant's involuntary commitment will be extended once again or whether applicant will be released. The developments in the criminal case of applicant are therefore still relevant and topical at this time. At the present state of affairs, it is difficult to see that applicant should be indemnified against any association on the internet with the criminal offence he has committed in the event of an unaccompanied leave of absence or an attempt to apply for a job. Against this background, the request by applicant to have the search results in his name removed is premature.
Holding
The data processing of Google is based on Article 6(1)(f). The content of the page linked to also has to be taken in account. Article 10 GDPR states that processing of personal data relating to criminal convictions and offences or related security measures based on Article 6(1) shall be carried out in principle only under the control of official authority. When a trade-off has to be made, based on Article 17 and 21, plaintiff's right to privacy shall normally outweigh Google's economical interests. In this case, it is relevant what the CJEU has determined in CJEU - C-136/17 - GC et al v. CNIL paragraphs 46, 47, 66, 67, 68, 76, 77, 78 and 79.
Plaintiff has been convicted for murderer committed in 2006. While the jail time has ended, the involuntary commitment had not been ended yet. Publicity which involved naming the full name of plaintiff are caused by his own actions. Plaintiff did not explain why the search results cause harm at this moment, considering the involuntary commitment is not finished yet. The search results do not point to wrong information in any way. The information, even from 2006 is still relevant.
The request will be rejected, because the conditions from Article 17(1) GDPR are not met. Listing of the search results shown after searching for the name of the plaintiff are required to protect the freedom of expression and information as defined in Article 11 Charter of Fundamental Rights of the European Union. This means the situation as described in Article 17(3)(a) GDPR applies.
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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.
