Hof Amsterdam - 200.248.187/01

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GERECHTSHOF AMSTERDAM - 200.248.187/01
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Court: GERECHTSHOF AMSTERDAM (Netherlands)
Jurisdiction: Netherlands
Relevant Law: Article 17 GDPR
Decided: 07.04.2020
Published: 20.05.2020
Parties: Google
National Case Number/Name: 200.248.187/01
European Case Law Identifier: ECLI:NL:GHAMS:2020:1270
Appeal from:
Appeal to: Unknown
Original Language(s): Dutch
Original Source: Jure beta (in Dutch)
Initial Contributor: n/a

The court of appeal confirms that Google does not have to delist the search result on a surgeon who has been subject to a disciplinary procedure

English Summary

Facts

Privacy law. When googling the name of the suspect (plastic surgeon), links to www.zwartelijstartsen.nl and www.drimble.nl appeared between the search results, mentioning the suspect's name, her BIG number, her specialty and the ruling of the Disciplinary Board. The respondent requested Google to remove the links. Google rejected this request and stated that the URLs in the search results are justified by the essential interest of the general public to have access to them.

Dispute

Holding

The Court of Appeal ruled that the right to freedom of information of Google and third parties outweighs the right to privacy and protection of personal data of the respondent. Although it follows from established case law (HR X/Google and CJEU Costeja) that in principle the public's right to freedom of information must give way to the right to privacy and protection of personal data, according to the Court of Appeal in this case there are special circumstances that ensure that in this case the right to information wins. Firstly, because the doctor treats a vulnerable group of patients with few treatment options, who should have easy online access to information about the advantages and disadvantages of their doctor. Secondly, the BIG register, which contains a record of measures imposed on a doctor, is hardly ever consulted by patients in practice. In addition, the BIG Act does not contain any rules on what third parties are allowed to publish or find about disciplinary measures. Finally, according to the Court of Appeal, the inclusion of the doctor on the 'black list' of SIN-NL, to which the search results refer, is recent, relevant, factual, not unnecessarily hurtful and current. Therefore, Google does not have to delete the search results.


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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.

COURT IN AMSTERDAM
Department of Civil and Tax Law, Team I

Case number : 200.248.187/01

case number of the Amsterdam District Court : C/13/636885 / HA RK 17-301

order of the multiple civil chamber of 7 April 2020

regarding

GOOGLE LLC,

located at Mountain View, California, United States of America,

appellante,

Lawyer: Mr. D. Verhulst in Amsterdam,

by

[interviewee] ,

living at [residence] ,

Intimate,

Agent: W.C.E. Baron van Lynden, Amsterdam.

1 The appeal proceedings
The parties will hereinafter be referred to as Google and [interviewee].

Google has been received at the Court Registry of the Court of Appeal of the European Communities at

19 October 2018, citing fourteen grievances in appeal against the order issued by the District Court of Amsterdam (hereinafter: the District Court) on 19 July 2018 under the case number mentioned above. The purpose of the appeal is, as a matter of fact, that the Court of Appeal will set aside the order referred to above and reject the original application of [the respondent], with - enforceable provisionally - an order that [the respondent] be ordered to pay the costs of the proceedings.

On 11 December 2018 the Court of Appeal received a defence in appeal from [the respondent], in which it requested Google to dismiss Google's appeal as inadmissible, or at any rate to uphold the order of which the appeal is based, and - provisionally and provisionally enforceable - to order Google to pay the costs of the proceedings at both instances.

The oral hearing of the appeal took place on 14 February 2020. On that occasion, Mr Verhulst and R.D. Chavannes, of the Amsterdam Bar, and Mr O.M.B.J. Volgenant spoke on behalf of Google, each on the basis of pleading notes that had been submitted.

Both parties brought further productions into dispute. The parties have answered questions of the Court of Appeal.

Finally, a decision has been made.

2 Facts
In the contested order under 2.1 to 2.12 the District Court considered a number of facts as established in this case. In ground 1, Google argued that the description of those facts does not contain inaccuracies but is incomplete. In so far as necessary, these will be taken into account below. In summary, and where necessary supplemented with other facts that have been established as being, on the one hand, established and, on the other hand, not or insufficiently disputed, the facts amount to the following.

2.1
2.1 [interviewee] is a plastic surgeon and works from her own clinic. [interviewee] participates in the public debate on the risks of silicone breast implants and at her clinic she is involved in, among other things, the removal of silicone breast implants from women with physical complaints attributed to the breast implants.

2.2
Google is the operator of the Internet search engine Google Search (hereinafter referred to as: the search engine). This search engine helps users to find information elsewhere on the Internet. Users can enter one or more search terms, after which the search engine displays a page with search results. The search results page displays hyperlinks that refer to web pages (also known as: source pages) with a snippet, a short summary of the page under the title (hereinafter hyperlink and snippet together also: link). The selection and arrangement of the search results and their presentation to the user are the dynamic product of an automated, algorithmic process. That algorithm selects and arranges search results on the basis of more than 200 factors. The precise operation of this algorithm is a Google trade secret.

2.3
On 7 June 2014, [the respondent] operated on a patient in her clinic, removing silicone breast prostheses (also referred to as the operation). After [the respondent] had left the clinic some time after the operation, the patient suffered a complication (haemorrhage). Because of this complication [the respondent] returned to the clinic and performed surgery on the patient again.

2.4
The patient filed a complaint against [the respondent] because of the lack of organisation and aftercare after the operation. This complaint has led to disciplinary proceedings as referred to in the Individual Healthcare Professions Act (hereinafter: the BIG Act).

2.5
In its decision of 7 August 2015, the Regional Health Care Disciplinary Board imposed an unconditional suspension of her registration in the BIG register for a maximum period of one year on [the respondent]. The respondent has lodged an appeal against this decision.

2.6
In its decision of 19 May 2016, the Central Health Care Disciplinary Board (Centraal Tuchtcollege voor de Gezondheidszorg) annulled the earlier decision and imposed a conditional suspension of [the subject]'s registration for a period of four months with a probationary period of two years. In so far as relevant, the judgment reads as follows:

"All in all, the Central Disciplinary Board is of the opinion that the plastic surgeon has been severely disciplinary in the care of the complainant. The organization of the surgical aftercare in the L. leaves much to be desired. The documents present a picture of a private clinic (independent treatment centre) with a limited number of medical staff, whose organisation of adequate aftercare in case of complications is vulnerable to the presence of the plastic surgeon and the willingness of the other medical staff to come to the clinic in case of a last-minute call. (...) In this sense, the postoperative aftercare provided by the L., of which institute the plastic surgeon is director, is insufficiently in order, based on the situation at the time of the complainant's operation. (…)

From the perspective of adequate care provision, the Central Disciplinary Court considers the measure of conditional suspension of the registration in the BIG register for a period of four months under the general condition stated below in the operative part of the judgment to be appropriate and offered. In doing so, the Central Disciplinary Board has taken into account that a number of parts of the complaint (...), other than in the first instance, have not or only partially been upheld on appeal. (...) The Central Disciplinary Court aims to send a clear signal to the plastic surgeon with the above-mentioned measure in order to prevent patients from being exposed to a structurally deficient organization of the surgical aftercare in the L.A.. (…)

On the basis of the documents and the treatment on appeal, the Central Disciplinary Board does not question that the plastic surgeon is competent, that she has the best interests at heart with her patients and that she is also particularly involved with her patients. Furthermore, the Central Disciplinary Board has been able to establish that the plastic surgeon has taken concrete steps to structurally improve the organization on various points as a result of the Health Care Inspectorate's investigation. (...) However, in view of the importance of a careful organization of surgical aftercare in private clinics, the Central Disciplinary Board does not see these positive changes in the organization of clinics as a reason to impose a less severe measure on the plastic surgeon. The Central Disciplinary Board has taken into consideration that the plastic surgeon declared at the hearing that she intends to continue her work in the clinic and that the Central Disciplinary Board has not been able to establish that the concrete steps taken by the plastic surgeon have already resulted in L. being sufficiently in order with regard to the points mentioned in the well-founded parts of the complaint discussed above. (...)”.

2.7
If in the search engine the search query ' [interviewee] ' is entered, a number of search results will be displayed. At the time of submitting the application in the first instance, the search results contained a link to

"www.zwartelijstartsen.nl/zwartelijst_arts/ [defendant] -r-m/", stating the name of [defendant] , her BIG number, her specialty, a photograph of [defendant] , the full text of the decision of the Central Disciplinary Board referred to in 2.6 and a summary thereof, as well as a link to an article on https: //drimble.nl. The source page of this link contained the title and the first five lines of an article about the conditional suspension of [the defendant], which was published on the website of a regional newspaper on 27 May 2016.

2.8
The websites zwartelijstartsen.nl and sin-nl.org have been set up and are used by the foundation Slachtoffers Iatrogene Nalatigheid Nederland (SIN-NL). The website zwartelijstartsen.nl includes the names of care providers who have been included in the BIG register with a disciplinary measure.

2.9
In 2017, [the respondent] submitted a written request to Google for the removal of the links. Google rejected this request. In so far as relevant, its rejection response is as follows.

"(...) In this case, it would appear that the URLs in question relate to matters of vital importance to the public in relation to your professional life. For example, these URLs may be of interest to potential or current consumers, users or participants of your services. Information about the recent professions or businesses in which you have been involved may also be of interest to potential or current consumers, users or participants of your services. Accordingly, the reference to this document in our search results for your name is justified by the interest of the general public to have access to it. (...)”.

3 Assessment
3.1
In the first instance, [interviewee] requested, in summary, that Google be ordered to remove the following links and keep them removed from the search results:

1. http://www.zwartelijstartsen.nl/ [respondent] -r-m/

2. https://drimble.nl/overige/gezondheid/36070876/ [...] -plastic-surgeon- [interviewee] -conditionally-suspended.html

http://www.sin-nl.org/ [...] -plastic-surgeon conditionally-suspended/

4. http://www.zwartelijstartsen.nl/wp-content/uploads/2016/05/ [Intimate] .jpg (hereinafter: the links), in such a way that they will no longer be shown to users who submit this search from the Netherlands, and also to be removed from Google.com, Google.nl and all local EU versions of Google Search, on pain of forfeiture of penalty payments, with Google being ordered to pay the costs of the proceedings.

3.2
Primarily, in summary, [the respondent] invoked a violation of Article 16 of the Personal Data Protection Act (Wbp) and Article 10 of the General Data Protection Regulation (AVG), because the links contain disciplinary personal data that must be qualified as criminal personal data. In the alternative, the [defendant] relies on the judgment of the Court of Justice of the European Union (CJEU) of 13 May 2014 in Case C-131/12 Google Spain v. Costeja (hereinafter 'the Costeja judgment') and the judgment of the Supreme Court of 24 February 2017 in Case ECLI:NL:HR:2017:316 (hereinafter 'the X/Google judgment'), as well as on Article 17 of the AVG (the right to oblivion). The balancing of interests to be carried out in this case must be to the benefit of [the respondent], according to [the respondent] . Google gave reasons for its defence.

3.3
The District Court considered that [the respondent]'s reliance on Section 10 of the AVG is not valid because personal disciplinary data are not categorised as special or criminal personal data under the AVG. The District Court therefore assessed the request on the subsidiary basis (the case law cited and Article 17 AVG) and considered the following. The lawfulness of the data processing in question must be assessed on the basis of the provisions of Article 6(1)(f) of the AVG. Two fundamental rights are at stake in the balancing of interests under that provision, namely the right to privacy and to respect for personal data on the one hand and the right to freedom of information on the other hand. In the X/Google judgment, the Supreme Court held, with reference to the Costeja judgment of the CJEU, that the right to privacy and to respect for personal data generally outweighs the right to freedom of information. The balancing of interests is in favour of [the respondent] in the present case because there are no special circumstances which would mean that the right of [the respondent] to have his privacy and personal data respected must be overridden by the interests of the public.

3.4
The District Court has ordered Google - enforceable for stock - to remove within seven days the links from the search result of the search query '[the respondent]' entered in the search engine in accordance with Google's fixed policy in the event of a removal order, which means that it will: 1) ensure that the relevant search results will no longer be shown to users searching from the Netherlands, regardless of which version of Google Search is used, and 2) remove the search results from all EU/EFTA versions of Google Search (such as Google.nl, Google.be, Google.fr, etc.). The court has also ordered Google to pay the costs of the proceedings, including post-clearance costs. Google has fourteen grievances against these decisions and the considerations on which they are based.

3.5
Attention has already been paid to ground 1 in the presentation of the facts that are still relevant on appeal. Letters 2 to 4 relate to the applicable legal framework. Letters 5 to 13 deal with the balancing of interests to be applied. Ground 14 is directed against the operative part of the order under appeal.

Jurisdiction, applicable law and relative jurisdiction

3.6
Before it can deal with the proposed grievances, the court of appeal should assess ex officio whether the Dutch court has jurisdiction to hear the case and, if so, what the law applicable in this case is. The relative jurisdiction of this Court should also be assessed ex officio. The parties did not comment on this and during the oral hearing on appeal these subjects were not discussed. For this reason the court of appeal sees reason to give the parties the opportunity to express their views on these subjects in writing, whether or not after mutual consultation.

3.7
Pursuant to the provisions of Article 262 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, Rv), and in so far as relevant in this case, the court of the place of residence or the actual residence of one of the parties has relative jurisdiction. The Court finds that in the contested order the District Court did not consider anything about its relative jurisdiction to take cognizance of the case. Whatever the case, the court of appeal may declare itself competent in the event that the parties declare that they wish this court to rule on the substance of the case. If the court of appeal comes to the opinion that another court has jurisdiction, then pursuant to Article 270 of the Rv the case must be referred to that other court of appeal in the state in which it is located. Referral does not take place if the parties to the case have indicated that they do not wish to have the case referred to them. Therefore the parties are also given the opportunity to express their views on the question whether they wish the case to be handled by this court or refer the case to another court if they do not consider the court (relatively) competent to take cognizance of the case.

3.8
Any further decision will be postponed.

4 Decision
The court:

refers the case to the roll call hearing on Tuesday 19 May 2020 for the taking of a deed by the parties to the purpose described above in 3.6 and 3.7;

reserves any further decision.

This order was made by M.L.D. Akkaya, F.J. Verbeek and

M.S.A. Vegter and publicly pronounced by the role counsel on April 7, 2020.