Rb. Amsterdam - AWB 18/7146
|Rb. Amsterdam - AWB 18/7146|
|Court:||Rb. Amsterdam (Netherlands)|
Article 34 of the GDPR Dutch Implementing Act (Wet bescherming persoonsgegevens - Wbp)
|Decided:||25. 9. 2019|
|Published:||21. 11. 2019|
|National Case Number:||AWB 18/7146|
|European Case Law Identifier:||ECLI:NL:RBAMS:2019:8329|
|Original Source:||de Rechtspraak (in NL)|
The Amsterdam Court of First Instance decided that the rejection of a suspended lawyer's request to the Dutch Bar Association to erase a list showing the claimant's suspension as a lawyer is not unlawful nor contrary to the GDPR.
The Dutch Bar Association published the plaintiff’s name on the online list of suspended and removed lawyers, after a disciplinary measure of unconditional suspension had been imposed on him. The plaintiff asked Google to remove the list from the search results relating to his name. Google refused and indicated the website operator as the competent entity for this removal. The Association, which was the website operator, rejected his request.
The Court recalled Article 34 of the Durch Data Protection Act (Wet bescherming persoonsgegevens - Wbp) which foresees that a written decision on a request submitted under Articles 15 to 22 GDPR shall be regarded as falling within the time limits referred to in Article 12(3) GDPR and, in so far as it has been taken by an administrative body, such as the Bar Association, this decision shall be deemed as a decision within the meaning of the General Administrative Law Act. Therefore, the Association rightly refused to grant the request for erasure under Article 17 GDPR.
Moreover, the Court found that the plaintiff did not justify his reliance on Article 18 GDPR. As for Article 21 GDPR, the Court ruled that the public interest in the publication of the list outweighs the plausible interest of the plaintiff to apply for a job unencumbered. Therefore, the Court dismissed the appeal as unfounded.
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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 Amsterdam Facts and circumstances 1.1. From 2011 up to and including 15 June 2018, the plaintiff was registered as an attorney at law on the tableau of the Netherlands Bar Association (NOvA). He recently practised in [place name] . On 17 January 2017, following a complaints procedure, the Council of Discipline in Utrecht imposed on him the disciplinary measure of unconditional suspension of the practice for a period of four months. By decision of 9 July 2017, the Court of Discipline confirmed this decision. 1.2. The plaintiff then suspended his practice for a period of four months with effect from 10 August 2017. In the meantime, he claims to have submitted the suspension for assessment to the European Court of Human Rights. On 1 June 2018 he was removed from the table at his own request. 1.3. The defendant made the plaintiff's suspension public on the so-called 'List of Suspended and Deleted Lawyers' (hereinafter: the list). The suspension of the plaintiff is listed as follows: "[name] [plaintiff] (office: [name] ), office at [place name] , district [place name] , suspension in the practice for a period of four months with effect from 10 August 2017 (date of decision: 17 January 2017)'. In the past, this list could be found as a pdf-file via the defendant's website. Nowadays the list can be found through search engines such as Google. 1.4. On 4 March 2018 the plaintiff asked Google to remove the list from the search results concerning him or his law practice, or at least to remove the search results that refer the Internet user to this list as source page (hereinafter: the disconnection request). Google has responded - in brief - that the plaintiff must send his request for disconnection directly to the webmaster of the relevant website. The webmaster may remove the content in question from the Internet and prevent it from being displayed in search engines. 1.5. Subsequently, on 3 April 2018, the claimant sent an e-mail with a disconnection request to the [name] the [name] . Decision of the defendant 2.1. By the primary decision, the defendant rejected the claimant's request for disconnection. 2.2. The claimant objected to this and applied for an interim injunction. By judgment of the Court in preliminary relief proceedings of 31 July 2018, the Court in preliminary relief proceedings rejected the application for an interim injunction. 2.3. Subsequently, by the contested decision the defendant declared the claimant's objection unfounded. On appeal, the plaintiff contested the defendant's position with reasons. 2.4. The positions of the parties will be discussed below, insofar as they are relevant to the court's assessment. Legal framework 3.1. Pursuant to the provisions of Section 8b of the Attorneys at Law Act, the secretary of the General Counsel shall make public in writing a list of information about lawyers in respect of whom a decision has been taken to unconditionally impose a measure as referred to in Section 48(2)(d) or (e) of that Act. This concerns, respectively, the measure to suspend the practice (for a period of four months in the case of plaintiff) and the measure to remove the tableau. 3.2. In its assessment, the court continues to base itself on the legal framework as set out in the annex attached to this judgment. Is there an act of fact? 4.1. The court understands, on the basis of the court documents and the proceedings at the hearing, that the plaintiff's request to the defendant is intended to prevent, when his personal details are entered in search engines on the Internet, such as Google, the aforementioned list with his name and information about his suspension from appearing as a hit, or the Internet user from being referred to this list as a source page. 4.2. The Court considers that the request for disconnection constitutes a request for the performance of an act by the defendant and not a request for a decision. The claimant's request cannot therefore be regarded as an application within the meaning of Article 1:3, third paragraph, of the General Administrative Law Act (Algemene wet bestuursrecht, Awb). This means that the defendant's refusal to grant that request for disconnection cannot be regarded as a decision within the meaning of Section 1:3(1) of the Awb, as the defendant rightly argued in the defence. Is there a decision on the basis of Regulation 2016/679 (General Data Protection Regulation, hereinafter: AVG)? 5.1. The plaintiff argues that the refusal to grant his request for disconnection constitutes unlawful processing of personal data relating to him. The court understands that by doing so, the claimant is invoking article 17, first paragraph and under d of the AVG. 5.2. On 25 May 2018, the GTC entered into force. The defendant has also considered the request for disconnection in the light of that regulation. Article 17(1) of the GCG provides that the data subject has the right to obtain from the data controller the erasure of personal data relating to him or her without unreasonable delay and that the data controller is obliged to erase personal data without unreasonable delay if one of the cases referred to in that paragraph applies. Pursuant to Article 34 of the General Data Protection Implementation Act (Uitvoeringswet Algemene verordening gegevensbescherming, hereinafter: the Implementing Act), a written decision on a request as referred to in Articles 15 to 22 of the Regulation shall be taken within the time limits referred to in Article 12(3) of the Regulation and shall, insofar as it has been taken by an administrative body, such as the defendant, be deemed to be a decision within the meaning of the Awb. 5.3. In view of the provisions of Article 34 of the Implementing Act, the defendant's refusal to apply Article 17(1) and (d) of the AVG constitutes a decision within the meaning of the Awb. Can the claimant successfully invoke Article 17 of the AVG? 6.1. The plaintiff argues that he is no longer an attorney at law, so that (continuing) the linking of his name via search engines on the internet to the publication of the list on which his suspension was mentioned in the past no longer serves a reasonable purpose. 6.2. The defendant took the position that reliance on Article 17, paragraphs 1 and 2, of the AVG is of no avail to the plaintiff, since the ground for refusal in paragraph 3 and under b of that article applies. On the basis of that provision, paragraphs 1 and 2 do not apply to the extent that processing is necessary for compliance with a statutory processing obligation incumbent on the controller laid down in national law. That obligation for the defendant is laid down in Article 8b of the Advocatenwet (Lawyers' Act). The defendant referred in this respect to recital 65 of the preamble to the AVG. The Court found that it states, inter alia, that the retention of personal data for a longer period is lawful if it is necessary for the exercise of the right to freedom of expression and information, for the fulfilment of a statutory obligation, for the performance of a task in the public interest or in the exercise of official authority vested in the controller, for reasons of public interest in the field of public health, for archiving in the public interest, for scientific or historical research or statistical purposes or for the establishment, exercise or substantiation of a legal claim. 6.3. The District Court does not follow the plaintiff in its view that (continuing) the linking of his name via search engines on the Internet to the publication of the list on which his suspension was granted in the past no longer serves a reasonable purpose. The following is important in this respect. According to the memorandum of amendment to the Lawyers Act, the system, currently regulated in Section 8a of the Lawyers Act, is based on the situation that, for example, litigants request information about lawyers with whom they would like to collaborate, but this does not alter the fact that a more active form of publication (of the list, addition of court) is also desirable. A litigant who is already using the services of a lawyer cannot be expected to periodically request information to see whether measures have been imposed on the person concerned in the meantime and whether he is still authorised to act as a lawyer. For this reason, it is desirable that the NOvA actively publishes information about attorneys at law on whom a suspension has been irrevocably imposed or who have been removed from the tableau. In order to establish trust, the public must be able to see how the quality and integrity of the legal profession is safeguarded by means of public access to relevant information. Active disclosure sends a strong signal to society as a whole and to members of the legal profession in particular that compliance with (professional) standards is being actively enforced. It provides transparency in the operation of disciplinary law, which serves the public trust in the legal profession. Pursuant to Article 8b of the Lawyers Act, the publication of the list, to which no time limits are attached, constitutes a one-off act. In doing so, the legislator has made a general consideration between the objectives of the list and the potentially disproportionate consequences for (former) attorneys at law. The fact that the legislator has included former attorneys at law in its considerations is evident from, among other things, the explanatory memorandum (Parliamentary Papers II 2010/2011, 32382, no. 8, p. 10) where the following has been noted: "Imposed deletions remain transparent to everyone, even after 10 years. After all, it is conceivable that a lawyer who has once been removed will present himself as a former lawyer in order to gain the public's confidence in other cases, while concealing the reason for terminating the appeal. It cannot be ruled out in advance that a deleted attorney at law will use this to gain an influential position. As a result, trust in the legal profession may be seriously damaged. For this reason, it should be possible to check for a longer period of time whether the person concerned has been suspended from the table at any time". 6.4. The fact that the plaintiff no longer works as an attorney at law does not affect the aforementioned (general) objectives that the legislator intends to pursue with the publication of the list. It appears from the above that in addition to the protection of clients who already have an attorney at law, the preventive effect of active disclosure is important in the context of the proper administration of justice in general. Active disclosure sends a strong signal to society as a whole and to members of the profession in particular that compliance with (professional) standards is actively enforced. Together with the defendant, the court is of the opinion that if the plaintiff's request were to be granted, there would no longer be any disclosure of relevant data and that the public would then only be able to read the anonymous statements and consult the list on the defendant's source page via the website [name of website]. The Court follows defendant in the opinion that it is unlikely that the public would be able to consult the list on the defendant's source page, while the public would no longer be able to find plaintiff on the table by granting the disconnection request and that, since the list on the source page is only consulted to a very limited extent, the public would not be reached if the list could no longer be found via (search engines such as) Google. 6.5. Conclusion of the foregoing is that, also taking into account the limited period of time since the confirmation of its suspension of 9 July 2017 and the fact that the publication period pursuant to Section 8a(3) of the Lawyers Act has been shortened and ends on 11 July 2022, i.e. 5 years after the judgment has become irrevocable, the defendant has now refused to grant the claimant's request for disconnection pursuant to Section 17 of the AVG. The appeal on this ground is unsuccessful. Can the claimant successfully invoke Article 18 of the AVG? 7. To the extent that the claimant invokes Article 18 of the AVG, the court considers that it has not substantiated in concrete terms why his request could be granted on one of the elements mentioned in that provision. For this reason already, the claimant cannot successfully invoke that article. Can plaintiff make a successful appeal to Article 21 of the AVG? 8. To the extent that the claimant invokes Article 21 of the AVG to object to the processing of his personal data for reasons related to his specific situation and is of the opinion that his personal interest outweighs the interest of the NOvA to maintain the list and the link, the court considers as follows. The plaintiff has not substantiated in any way with documentary evidence that the list and the enforcement of the link actually impede his ability to apply unencumbered. Therefore, the District Court agrees with the opinion of the NOvA that the social interest in publishing the list and the findability/linking of the list on Google outweighs the plaintiff's unsubstantiated interest in applying unencumbered. The appeal on this ground was unsuccessful. Considerations in conclusion 9.1 The appeal is therefore unfounded. 9.2 The plaintiff has requested the court to order the defendant to pay compensation for damages suffered by him. It follows from Section 8:88(1)(a) of the General Administrative Law Act (Awb) that this must be an unlawful decision. From what has been ruled above, it follows that this is not the case. Now that there is also no question of one of the situations as referred to in Section 8:88(1)(b), (c) and (d) of the General Administrative Law Act that can lead to the award of compensation, the court will reject the claim for compensation. 9.3 There is no reason for an order to pay legal costs. Decision The court: - dismisses the appeal as unfounded; - rejects the claim for damages. R.B. Kleiss, chairman, and O.P.G. Vos and L.Z. have issued this decision. Achouak el Idrissi, members, in the presence of E.M. de Buur, Registrar. The decision was publicly pronounced on 25 September 2019. is prevented from signing the verdict court clerk judge Copy sent to parties on: Legal remedy An appeal may be lodged with the Administrative Jurisdiction Division of the Council of State against this decision within six weeks of the date on which it was sent. If an appeal has been lodged, a request may be made to the Interim Injunction Judge of the Higher Appeal Court for a preliminary injunction or for the annulment or modification of a preliminary injunction made by this decision.