| GHAL - 200.256.426 | |
|---|---|
 | |
| Court: | GHAL (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 4(2) GDPR Article 6(1)(f) GDPR Article 6(4)(d) GDPR Article 17 CFR Article 47 CFR Article 8 ECHR Article 13 ECHR |
| Decided: | 05.11.2019 |
| Published: | 05.11.2019 |
| Parties: | DFW Ziggo |
| National Case Number/Name: | 200.256.426 |
| European Case Law Identifier: | ECLI:NL:GHARL:2019:9352 |
| Appeal from: | Rb. Midden-Nederland (Netherlands) |
| Appeal to: | |
| Original Language(s): | Dutch |
| Original Source: | de Rechtspraak (in Dutch) |
| Initial Contributor: | n/a |
The Arnhem-Leeuwarden Court of Appeal ruled that it is not necessary for the internet provider Ziggo to supply user-data to the copyright holder Dutch movie distributor DFW.
English Summary
Facts
DFW (a Dutch movie distributor) applies a protocol to its processing of personal data which was approved by the Dutch DPA before the GDPR came into force. DFW asked Ziggo (an internet service provider) to provide IP addresses of customers who according to DFW shared movies illegally. Ziggo refused to provide this information.
Dispute
Τhe Court had to assess whose interests prevail in this case: DFW's interest in the protection of its intellectual property rights or Ziggo's interest in the protection of the personal data of its customers.
Holding
The Court found that any processing needed to be based on legitimate interests according to Article 6(1)(f) GDPR and that Ziggo had to comply with Article 6(4)(d) GDPR.
The Court found that DFW had a legitimate interest and that the processing was necessary. However, the Court pursued a balancing exercise between the interests of DFW and the interests of the data subjects and found that the approved protocol was not transparent enough. Thus, the possible consequences for the data subjects of providing their data to DFW could not be estimated.
DFW failed to make clear which action it would take, under which circumstances and in which manner it would inform the data subjects of their rights. The Court is of the opinion that the interests of Ziggo's customers are still insufficiently safeguarded, and it, therefore, rejected DFW’s claims confirming the ruling of the Court of First Instance. The Court based its ruling on the national civil code, Articles 4(2) and 6 GDPR, Articles 17 and 47 of the Charter of Fundamental Rights (CFR), and Articles 8 and 13 ECHR.
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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
Court of Appeal of Arnhem-Leeuwarden
1. The proceedings at first instance
For the proceedings in the first instance, the Court of Appeal refers to the contents of the judgment of 8 February 2019 rendered by the Interim Injunction Judge in the District Court of Midden-Nederland, location Utrecht.
2. The appeal proceedings
2.1
The course of the procedure is evidenced by
- the appeal summons of 7 March 2019, with grievances and productions,
- the statement in reply, also the statement of conditional incidental appeal, with productions,
- the memorandum of reply in conditional incidental appeal, with productions,
- the pleading of 25 June 2019, in which Ms Van Kaam and Ms Van Lith pleaded on behalf of DFW and Ms Van den Brink and Spauwen on behalf of Ziggo et al. in accordance with their pleading notes; the Registrar made notes of what was discussed at the hearing, also a deed with productions 22 through 24 on the part of DFW and a deed with production 14 on the part of Ziggo et al. was granted.
2.2
After the pleadings, the Court of Appeal issued a judgment.
2.3
In the principal's appeal, DFW claimed that the Court of Appeal should set aside the judgment of the Court of Appeal in preliminary relief proceedings of 8 February 2019 and declare the judgment provisionally enforceable:
I. Ziggo c.s. (jointly and severally) will order DFW to provide the following (identifying) data, to the extent available, of the subscribers of the IP addresses, as shown in production 13A-B at the summons in first instance, within five days after service of this judgment on DFW:
a. the full first name(s), or at least the initial(s);
b. the full surname;
c. the full address details, consisting of the street name, house number and any house number addition, postcode and town;
d. the e-mail address with which the relevant subscriber is registered with Ziggo c.s;
at least those provisions that the Court of Appeal deems appropriate;
II. Ziggo c.s. (jointly and severally) will be ordered to pay a penalty of € 5,000.00 with a maximum of € 5,000,000.00, or at least a penalty to be determined by the court of appeal, for each day - including part of a day - that Ziggo c.s. fails to comply with the order under I;
III. Ziggo c.s. jointly and severally, in the event that one of the payers has freed the other, will be ordered to pay the costs of the proceedings, including the costs of compliance, of both instances;
IV. at least take such measures as the Court deems appropriate.
2.4
In the conditional incidental appeal, Ziggo et al. claims that the Court of Appeal will reject DFW's claims and either ratify the contested judgment - with or without improvement of the grounds - or set it aside and, in doing so again, will conclude to reject the claims, ordering DFW to pay the costs of Ziggo et al. of both instances, enforceable on a provisional basis.
3. The established facts
3.1
The Court of Appeal bases its appeal on the following facts.
3.2
DFW is one of the largest independent film distributors in the Netherlands in the field of cinema, home entertainment, Video On Demand and (pay- and free) TV. With regard to the film The Hitman's Bodyguard (hereinafter referred to as: the Film), it is the sub-distributor for the Netherlands. She is also entitled, also on behalf of the co-owners of the Film, to take action against infringements of intellectual property rights.
3.3
Ziggo c.s. provides services in the area of, among other things, providing internet access (access provider) to its customers. In order to send information exchanged over this network to the right recipients, its customers have an Internet Protocol address (hereinafter IP address). Ziggo c.s. has many IP addresses which it temporarily allocates to its users. The IP address is associated with the customer's Internet connection and is linked to the device the user hangs on to this connection, for example a router, via which the same Internet connection can be used with several devices/devices. Ziggo c.s. records (limited in time) which IP address is assigned to which subscriber at which time.
3.4
The (final) decision of the Authority for Personal Data (AP) was published in the Government Gazette of 6 December 2017 (Netherlands Government Gazette 2017, 71406, hereinafter: the Decision). The Decision means that the intended processing of personal data reported by DFW to the AP, as laid down in DFW's Protocol Online Enforcement of Intellectual Property Rights of 25 October 2017 (hereinafter: the Protocol), is deemed lawful. The Protocol relates to the collection and recording of the IP addresses of subscription holders of Ziggo c.s. to be reported and of the related personal data relating to name, address and place of residence (hereinafter referred to as: name and address data) that DFW hopes to obtain by making these name and address data available to it by Ziggo.
3.5
During the period from 21 December 2017 to 2 February 2018, the German company Tecxipio GmbH ('Tecxipio') monitored the exchange of the Film via BitTorrent networks on behalf of DFW. BitTorrent is a technology developed in 2001 that allows users to download files from Internet users' computers over the Internet. The file is chopped into small particles so that these particles can be downloaded from different users. The downloader connects via the internet to providers that offer particles of this file (the so-called uploaders). BitTorrent is based on IP addresses.
3.6
In a letter dated 6 April 2018, DFW requested Ziggo c.s. to provide the name and address details of 174 IP addresses from customers of Ziggo c.s. These IP addresses were recorded by Tecxipio in the period from 21 January 2018 up to and including 28 January 2018.
3.7
On 25 April 2018 Ziggo c.s. informed DFW in response to the letter of 6 April 2018 that it will retain the data to the extent still available, but that it will not voluntarily surrender the data. According to Ziggo c.s., 74 of the requested IP addresses are no longer available due to a technical problem. Furthermore, DFW has been informed that the request and the appendices contain too little information to conclude that, and which customers of Ziggo c.s. have infringed the rights of the rightholders affiliated with DFW to the Film.
3.8
In a letter dated 4 May 2018, DFW submitted an additional request to Ziggo et al. for the Film to be handed over. A request was made for the (additional) issue of the name and address details for 203 IP addresses. This (additional) list of IP addresses covers the period from 2 January 2018 up to and including 1 February 2018.
3.9
Ziggo c.s. has not provided DFW with any data regarding the IP addresses.
4. The dispute and the decision in first instance
4.1
In the first instance, DFW filed a similar claim with the Court in preliminary relief proceedings as the claim on appeal.
4.2
The Court in preliminary relief proceedings rejected the claimed claim in the contested judgment of 8 February 2019. In summary, and insofar as relevant in the context of the assessment of the grievances in the principal's appeal to be made below, the Court in preliminary relief proceedings based its decision on the following considerations:
A legal basis is required on the basis of which an Internet Service Provider (ISP) such as Ziggo c.s. can be obliged to provide customer data. Section 6:162 of the Dutch Civil Code, as interpreted by the Supreme Court in its judgment of 25 November 2005 in Lycos/ [defendant] (ECLI:NL:HR:2005:AU4019), contains a statutory basis as a result of which Ziggo c.s. may under circumstances be obliged to surrender customer data. Pursuant to that judgment, the following circumstances are relevant in this respect:
a. it is sufficiently plausible that downloading the Film using BitTorrent networks is unlawful vis-à-vis DFW;
b. DFW has a real interest in obtaining the NAME Data;
c. it is plausible that in this specific case there is no less far-reaching possibility of retrieving the NAME Data;
d. if the interests of DFW, Ziggo et al. and its subscribers are weighed up, DFW's interests must be given greater weight in this case.
Although the assessment of the points referred to under a., b. and c. is in DFW's favour, DFW has not put forward sufficient arguments in this case to make the balancing of interests referred to under d. in its favour. This is the decisive factor in this respect:
- for each IP address there is a one-time infringement of the intellectual property rights to the Film, which does not make DFW's interest in the provision of the name and address details extra important (r.o. 4.17);
- the amount that DFW wishes to receive from the subscriber is not substantiated in any way, so that it cannot be excluded that this amount also includes elements of a fine (r.o. 4.18);
- it is not clear whether, and if so in what way, DFW communicates in the letters to be sent to the holder of the IP address what - in case he is not the illegal downloader himself - his legal position is (r.o. 4.19);
- Nor has DFW indicated whether and in what way it will actively draw the attention of the persons to be registered to the guarantees of the rights of the persons concerned included in chapter 7 of the Protocol (paragraph 4.20);
- DFW should have been expected to provide more information in order to be able to assess whether it takes sufficient account of the interests of the IP address holder (4.21).
5. The grounds for the decision on appeal
The scope of the appeal
5.1
DFW has lodged ten objections (grievances) against the rejection of its claims. The court of appeal will deal with these grievances jointly below. Ziggo c.s. has lodged an incidental appeal on the condition that DFW's appeal is successful. The court of appeal is therefore not entitled to deal with the grievances put forward in that context if the grievances put forward by DFW fail.
5.2
An exception to this is the second ground of appeal in incidental appeals, which raises the question - also to be judged ex officio by the court of appeal - whether DFW still has an urgent interest in the requested remedy. In answering this question in general the circumstance that the plaintiff has remained silent for a long time may play a role, while the circumstance that a question of law is in dispute to which the answer is not obvious may lead to caution in the allocation of the requested remedy, but these circumstances can neither individually nor in conjunction justify the opinion that the plaintiff does not (any longer) have an urgent interest in the requested remedy. Nor are those circumstances in themselves sufficient for the finding that, by bringing an application for interim relief, the plaintiff is acting contrary to the requirements of good procedural conduct (HR 29 November 2002, ECLI:NL:HR:2002:AE4553). In the present case, the urgent interest of DFW has already been given by the circumstance that there is a risk that the requested information will become obsolete or will no longer be present at a certain point in time. There is therefore no obstacle to discussing the substance of the case.
The essence of the case
5.3
In brief, what this case is about is the question of whether Ziggo et al. has an obligation to provide DFW with personal data of certain customers. DFW is an interest group of rightholders (makers) of films. According to DFW, a number of Internet users have downloaded the film The Hitman's Bodyguard via IP addresses of Ziggo c.s., thereby infringing the copyright of the makers of this film. The makers are suffering damage because they are missing out on income. DFW has asked Ziggo c.s. to provide personal details of Ziggo customers that belong to the IP addresses of which DFW has established that the film rights have been infringed. After receiving these personal data, DFW wishes to approach the customers and possibly hold them liable for the fact that they have wrongfully infringed the film rights of the makers. The Court of Appeal has to assess whose interest prevails in this case: DFW's interest in the protection of its intellectual property rights or Ziggo's interest in the protection of the personal data of its customers. The Court of Appeal is of the opinion that at this moment the interests of Ziggo's customers are still insufficiently safeguarded after DFW has issued the personal data. The claim is therefore dismissed. The Court of Appeal will explain the reasons for its decision below.
The assessment framework
5.4
The granting of an order to issue personal data requires that Ziggo et al. has a legal obligation to do so (Article 3:296 of the Dutch Civil Code). DFW has based this legal obligation on the assertion that Ziggo c.s. acts unlawfully when it fails to provide DFW with its customer details. A wrongful act shall be deemed to exist in accordance with the law if (i) there is an infringement of a subjective right, (ii) an act or omission is in breach of a statutory duty or (iii) an act or omission is in breach of what is customary in society according to unwritten law (Section 6:162(2) of the Dutch Civil Code).
5.5
DFW invokes the right to protection of intellectual property, as laid down in Article 17 of the Charter of Fundamental Rights of the European Union (hereinafter: Charter) and Article 1 First Protocol of the ECHR, for its request for the surrender of personal data. That right is elaborated in, inter alia, Directive 2004/48 on the enforcement of intellectual property rights and laid down in various Dutch regulations, including the Copyright Act. The purpose of the regulations is to enable inventors or creators to profit lawfully from their invention or creation. In addition, DFW invokes the right to effective legal protection (Article 47 Charter and Article 13 ECHR). This means that a person whose fundamental right is infringed must be offered an effective remedy before a court.
5.6
Ziggo c.s. invokes the right to protection of personal data (Article 8 of the Charter) or respect for privacy (Article 8 ECHR) for its refusal to provide personal data of customers to DFW. The provision of personal data falls, just like the collection thereof, under the legal term: processing of personal data. Processing includes: provision by means of forwarding, distribution or otherwise making available. The manner in which personal data may be processed is regulated in the General Data Processing Regulation (AVG). This regulation came into force on 25 May 2018. The previously applicable Privacy Directive (Directive 95/46/EC) and the Personal Data Protection Act (Wbp) based in part on it have lapsed. In the area of data subjects' rights, the AVG largely corresponds to the old rules from the Privacy Directive (Directive 95/46/EC) and the Personal Data Protection Act (Wbp), on the understanding that the AVG, more explicitly than the Wbp, emphasizes the obligation of both the national legislator and the national court to ensure a correct balance between privacy interests and other interests protected under fundamental rights. On the basis of the transitional law contained in Section 48 of the Implementing Act for the General Data Protection Regulation (Uitvoeringswet Algemene verordening gegevensbescherming (UAVG)), it is further stipulated that decisions taken by the Data Protection Authority prior to the entry into force of the AVG are legally valid as decisions taken by the Authority for Personal Data.
5.7
It has been established that the provision of the name and (email) address of certain clients, as requested by DFW, means that personal data will be made available and that this provision constitutes processing within the meaning of (now) Article 4(2) of the AVG.
5.8
Furthermore, it is not disputed between the parties that DFW has been given permission in the Decree to record personal data on the grounds of the targeted collection of information by means of its own research without informing the person concerned. The consent relates to:
1) recording evidence of file sharing via IP addresses by investigating the involvement of users of BitTorrent networks in the distribution or reproduction of copyright-protected works (step 1 of the Decision);
2) with the purpose of tracing BitTorrent users suspected of copyright infringement after selection of the data received by requesting contact details from Dutch Internet Service Providers and, if they do not cooperate, submitting a request to the court (step 2 of the Decision);
3) with the underlying aim, after establishing the identity of the subscriber concerned, to approach him personally in order to inform him about the investigation and to address him on account of conduct that infringes copyright (step 3 of the Decision) by taking (one of) the following actions:
(a) DWF sends a warning to the person concerned;
(b) DFW reaches an amicable settlement with the infringer and asks him to sign a declaration of abstention with a penalty clause;
(c) DFW reaches a settlement, requests a declaration of abstention with a penalty clause and recovers the costs incurred from the offender;
(d) DFW sends a summons to the infringer demanding an injunction and reimbursement of the costs;
(e) DFW sends a summons demanding an injunction and reimbursement of costs as well as damages.
This dispute relates to the step described in the Decree as step 2. It is not DFW's data processing as such that is at issue, but the question of whether Ziggo c.s. as a Dutch internet service provider should cooperate in providing the requested data.
5.9
Ziggo c.s. also collects personal data from its customers. As a result, it is also subject to the legal obligations from the AVG as a data controller in the sense of article 4 under 7 of the AVG. The question as to whether it is authorised to provide the requested data lies in Article 6 of the AVG (formerly: Articles 8 and 9 of the Wbp). In so far as relevant here, this article reads as follows (the underlining was done by the court of appeal):
"Processing is only lawful if and insofar as at least one of the following conditions is met:
a) the data subject has given permission for the processing of his/her personal data for one or more specific purposes; (...)
;(f) processing is necessary for the purposes of pursuing 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, in particular where the data subject is a child. (…)
4. Where processing for a purpose other than that for which the personal data were collected is not based on the data subject's consent or on a provision of Union or Member State law (...) designed to ensure the objectives referred to in Article 23(1), the controller shall take into account, inter alia, when assessing whether processing for a purpose other than that for which the personal data were originally collected is compatible with the purpose for which the personal data were originally collected: (…)
(d) the possible consequences of the intended further processing for data subjects.
5.10
It is certain that Ziggo customers have not given Ziggo c.s. permission to provide a third party with the data collected by them with a view to the performance of the agreement. The provision should therefore be based on the basis referred to under f., whereby the possible consequences of the provision of personal data to DFW for Ziggo customers will also be important. The preamble of the AVG under 47 and 50 emphasises in this respect that the reasonable expectations of the data subject based on his relationship with the data controller should be taken into account:
"(47) (...) In any case, a careful assessment is required to determine whether
there is a legitimate interest, as well as to determine whether a data subject may reasonably expect processing to be carried out for that purpose at the time and in the context of the collection of the personal data. In particular, the interests and fundamental rights of the data subject may outweigh the interest of the controller where personal data are processed in circumstances in which the data subjects do not reasonably expect further processing. (…)”
"(50) (...) In order to verify whether a purpose of further processing is compatible with the purpose for which the personal data were originally collected, the controller should, after having complied with all the requirements relating to the lawfulness of the original processing, take into account, inter alia, the following: a possible link between those purposes and the purposes of the intended further processing; the framework in which the data were collected; in particular, the reasonable expectations of the data subjects based on their relationship with the controller regarding the further use of the data; the nature of the personal data; the impact of the intended further processing on the data subjects; and appropriate safeguards in both the initial and intended further processing. (…)”
5.11
The foregoing leads to the conclusion that in order to assess whether there is a legal obligation to issue (process) personal data, Ziggo et al. must (a) be a legitimate interest, (b) the processing must be necessary and (c) the interest of DFW must take precedence over the interest of the customer of Ziggo et al. concerned. The assessment of the necessity of processing is based on the concepts of proportionality and subsidiarity developed in law.
Justified interest
5.12
In the opinion of the Court of Appeal, DFW has a legitimate interest in the provision of personal data by Ziggo c.s. to it. To this end, the Court of Appeal takes into account that persons who have downloaded the Film via BitTorrent have intentionally infringed the intellectual property right to which DFW is entitled. DFW has a legitimate interest in taking action against these persons and to recover from them the damage that these persons have caused it. For the time being, the Court deems it plausible that DFW has no other, at least as effective, means at its disposal to identify the possible infringers and to recover its damages, other than by sending requests to Internet Service Providers (ISPs) to provide the name and address details of the possible infringers. The other possibilities mentioned by Ziggo c.s., such as accessing infringers via chat, decoy files and spoofed content, or tackling BitTorrent exchanges on a large scale, appear to be less effective, at least in recovering from the individual infringer the damage caused by them.
Necessary
5.13
Furthermore, in the opinion of the Court of Appeal, DFW has a real (actual) interest in the provision of the personal data of the users with certain IP addresses, because it can only investigate the identity of an infringer in this way. Ziggo et al.'s assertion that its customer does not necessarily have to be the BitTorrent user and therefore the infringer does not sufficiently detract from this, because the circle of persons from whom DFW requests personal data is limited to the holders of an IP address from which it has been established that DFW's intellectual property rights have been infringed. The fact that the possibility exists that not the holder of the Internet connection himself, but another person has used the Internet connection and has committed the identified infringement, does not affect the fact that the holder of an IP address is in principle responsible for that use. In the opinion of the Court of Appeal, the provision of personal data of certain customers of Ziggo c.s. is therefore sufficiently demarcated. In addition, the Court of Appeal takes into account the statement in the Decree (p. 4, under 4) that DFW will not conduct any further investigation if the data processor establishes that there is no obvious infringing activity that fits in with DFW's priority setting policy. Finally, the Court reiterates in this respect that for the time being it has not become plausible that in the specific case there is a less drastic possibility to establish the identity of the infringer.
Balance of interests
5.14
When assessing whether Ziggo et al. has a legal obligation to provide personal data, it is important to strike the right balance between the privacy interests of its customers on the one hand and other interests protected by fundamental rights on the other hand. In this case, the right to protection of personal data (Article 8 Charter and Article 8 ECHR) is in contrast to the right to protection of property (Article 17 Charter and Article 1 First Protocol ECHR) and the right to effective legal protection (Article 47 Charter and Article 13 ECHR). In weighing up these interests, the Court takes the following considerations into account.
5.15
Against the background of the case law of the ECJ EU1 on the balance between the two fundamental rights, the Court of Appeal considers that it can invoke the privacy interests of its customers by Ziggo c.s. unrestrictedly and unconditionally under the given circumstances - namely that as of the date on which Ziggo c.s. was granted the right to protect the privacy of its customers. as ISP granted by Ziggo c.s. to customers infringes DFW's rights - leads to a serious infringement of the ability to fully exercise the fundamental right to intellectual property and the fundamental right to an effective remedy to which holders of intellectual property rights are entitled, so that the requirement that a correct balance is ensured between the various fundamental rights to be weighed up against each other is not met. In doing so, the Court also takes into account that the data requested by DFW cannot be obtained effectively via another provision or legal remedy.
5.16
The court of appeal also attaches significance to the fact that the general terms and conditions of Ziggo et al. (article 9 and article 23 sub 8) state that the customer himself is responsible for the consequences of any authorised or unauthorised use of his internet connection and must guarantee claims by third parties for the unauthorised reproduction or publication of copyright-protected works. This indicates to Ziggo customers that they must take into account that if unlawful use is made of the access to the internet provided by Ziggo c.s. and Ziggo c.s. is held liable for this, it will shift this responsibility to its customers. It follows from this that, on the basis of their relationship with Ziggo c.s., Ziggo c.s. can reasonably expect that Ziggo c.s. will deposit the consequences of unlawful use with them and that they can be held liable for such unlawful use.
5.17
Furthermore, it is relevant that this does not concern special personal data, but (only) the name and surname and the (email) address of the IP addresses of BitTorrent users supplied by DFW from which a clear breach of film rights has been observed.
5.18
On the other hand, the consequences of the intended further processing for Ziggo customers may be considerable. As indicated above under 5.8sub 3), this could involve actions ranging from sending a warning to a Ziggo customer concerned to recover costs and damages by issuing a subpoena. The court of appeal follows Ziggo et al. in its opinion that DFW does not make it clear when it will take which action. In the protocol drawn up by DFW in which it provides an explanation, the Court states that it will always assess on a case-by-case basis which actions or follow-up steps it wishes to take against a person involved. By not being transparent about the criteria it applies when deploying the actions it intends to take, the interests of the Ziggo customer concerned will be affected. After all, DFW reserves the right to choose the action it deems appropriate only after it has received the personal data, unilaterally and without any justification or explanation. In the opinion of the Court of Appeal this leads to a distortion of the balance to be found, especially in the situation where it is uncertain whether the Ziggo customer in question is actually the infringer, as Ziggo et al. has substantiated and substantiated with various productions. Ziggo c.s. has pointed out that this is not necessarily the case because third parties may have used the IP address and may have downloaded the Film via that address, but also because IP addresses change frequently and are allocated to different users. As considered in point 5.15 above, no absolute protection can be afforded to a Ziggo customer who owns an internet connection that infringes intellectual property rights. He may even be required to provide specific information in order to identify the actual infringer, but he should be given the opportunity to do so. Because the DFW Protocol and also this procedure do not transparently set out the way in which DFW will exercise its action policy, the consequences of the provision of personal data for the Ziggo customers concerned cannot be properly estimated. The Court of Appeal therefore also considers that Ziggo et al. is not in a position to adequately inform its customers in advance about the consequences of the provision of data to DFW. The Court of Appeal refers in this respect to Articles 5 and 14 paragraph 4 of the AVG and the preamble under 39 which states: 'Natural persons must be made aware of the risks, rules, guarantees and rights in connection with the processing of personal data, as well as of the way in which they can exercise their rights in relation to this processing'. In addition, there is also the risk that a Ziggo customer will be confronted with a measure even before he has been given the opportunity to investigate the use of his Internet connection and determine his role in it.
5.19
In addition, DFW is also insufficiently transparent as to whether, and if so what amounts, it will claim from these Ziggo customers and how and to what extent it will recover the costs it has incurred in tracing these Ziggo customers. In this connection, Ziggo c.s. has pointed out that DFW has regularly made it clear to the press that it intends to make a settlement proposal of initially € 150 to holders of Internet connections with which film rights have been infringed, but that claims for damages can amount to many hundreds of euros (among other things in the article in de Volkskrant of 16 January 2019, production 2 by conclusion of reply). In one of the press releases it is mentioned that a spokesman of DFW has stated "We hope that the fines will deter people" (article in de Volkskrant of 15 January 2019, production 1 by conclusion of reply). In another press release it is quoted that the amount that DFW is thinking of is as high as "driving through red (230 euros)" and that they are going to send claims "to deter illegal downloading" (article in NRC 20 June 2016, production 13 by memorandum of reply). That "the amount should have a deterrent effect" was also stated by a spokesperson of DFW to a journalist of RTL news (article of 13 November 2017, production 13 by memorandum of reply).
These articles also refer several times to Germany, where large fines are imposed on illegal downloaders, which is "the big example" for DFW (among others in the article in de Volkskrant of 16 January 2019, production 2 by conclusion of reply). During the plea, DFW stated that the amount of € 150, which was mentioned in several press publications, is an indicative amount, on which the Court of Appeal should not peg it, but it did not want to waive this amount either. In addition, DFW has stated that these are "actual costs", that there will be no punitive element in the settlement amount that it will ask from the Ziggo customers concerned, that the costs of the AP will not be passed on, but that the costs of the investigation will be passed on.
5.20
Here too, because DFW does not transparently set out in its protocol and in this procedure under which circumstances it will claim which amounts from Ziggo customers, the consequences of the provision of personal data for the Ziggo customers concerned cannot be properly assessed. Nor is it possible to assess whether the measure that DFW will take is appropriate under the given circumstances. After all, once the personal data have been obtained, it must first be established whether the infringement has actually been committed by the Ziggo customer. In addition, it is uncertain whether the costs and damage that DFW wishes to recover from an individual infringer are in reasonable proportion to each other. For example, Ziggo et al. pointed out that the damage that DFW suffers as a result of the individual downloader is very small, since according to Ziggo et al. the Film can be legally viewed online for only €2.99 or €2.49, or can be purchased as a DVD for an amount of €13.99 according to DFW. It is also important to note that the damage suffered by DFW is caused by several infringers (approximately 20,000 according to DFW), while only a very limited number of those infringers (377) are claimed. It is true that DFW stated during the plea that it will not sue 377 people for the costs of 20,000 illegal downloads. However, DFW has still not made it clear what it intends to recover, how the amounts to be recovered have been compiled and how the rights of the Ziggo customers concerned have been effectively safeguarded, despite a number of related questions.
5.21
In connection with the latter the Court of Appeal also notes that the circumstance that according to the Protocol a Ziggo customer can file a complaint after the personal data have been provided and he has been addressed by DFW does not detract from what has been considered above. After all, the question whether there is proper and lawful processing must be judged by the moment at which the personal data are provided. In addition, the Court of Appeal notes that it cannot simply be assumed that the rule contained in the Protocol under 7.6 that a data subject is obliged to bring forward facts and circumstances that show that the breach cannot be attributed to him/her. After all, on the basis of the main rule of Article 150 of the Rv, the obligation to establish and prove the unlawful infringement rests in principle on DFW and not on the Ziggo customer.
5.22
The above leads the Court of Appeal to the conclusion that the correct balance between the privacy interests of the Ziggo customers concerned on the one hand and the interests of the rightholders of intellectual property rights to be able to benefit from their creation on the other hand has not (yet) been achieved. In the opinion of the Court of Appeal, DFW has explained in an insufficiently transparent manner how DFW bases its decision on a particular action and on the content and size of the amounts it wishes to claim. As a result, there is a lack of clear and comprehensible criteria on the basis of which an assessment can be made of the consequences for the Ziggo customers concerned of the provision of his personal data and it cannot be assessed whether the intended measures are in a reasonable proportion to the interest that DFW is served by them and the privacy interest of the Ziggo customer that is violated by the provision of data. On the basis of these circumstances, also considered in connection with each other, the Court of Appeal is of the opinion that Ziggo c.s. is currently not acting in violation of a legal obligation incumbent upon it by refusing to provide DFW with the requested personal data. For this reason, the requested remedy cannot be granted and the contested decision will be upheld.
5.23
Grief IX of DFW is directed against an overriding consideration and does not need to be dealt with for this reason. Also on appeal, what DFW has argued in this context cannot lead to a different decision, so that this will also be disregarded to that extent.
5.24
The offer of evidence made by DFW in general terms is rejected. After all, there is in principle no place for the provision of evidence in summary proceedings, whereas the evidence offered, if proven, cannot lead to a different decision.
5.25
An assessment of the grievances in incidental appeals is no longer possible because the condition under which they were lodged has not been met.
6 The conclusion
6.1
The grievances in the principal appeal have failed. An assessment of the grievances in an incidental appeal cannot be carried out. The contested judgment will be upheld.
6.2
If the unsuccessful party, the court of appeal will order DFW to pay the costs of the appeal. The costs of the appeal proceedings on the part of DFW are estimated at € 741 in out-of-pocket expenses and € 3,222 for salary in accordance with the liquidation rate (3 points x rate II).
7. The decision
The Court of Appeal, on appeal in interim relief proceedings:
ratifies the judgment of the Interim Injunction Judge in the District Court of Midden-Nederland of 8 February 2019;
orders DFW to pay the costs of the appeal, until this decision on the part of Ziggo c.s. fixed at € 741 in out-of-pocket expenses and at € 3,222 for salary in accordance with the liquidation rate;
declares this judgment provisionally enforceable to the extent that it concerns the order to pay the costs of the proceedings referred to herein.
This judgment was rendered by Mrs H.L. Wattel, S.B. Boorsma and I. Brand and was pronounced publicly on 5 November 2019 in the presence of the Registrar.
