Rb. Amsterdam - C/13/682421 / KG ZA 20-336: Difference between revisions

From GDPRhub
(Created page with "{| class="wikitable" style="width: 25%; margin-left: 10px; float:right;" ! colspan="2" |Rb. Amsterdam - C/13/663563 / HA RK 19-97 |- | colspan="2" style="padding: 20px; backgr...")
 
No edit summary
 
(One intermediate revision by one other user not shown)
Line 1: Line 1:
{| class="wikitable" style="width: 25%; margin-left: 10px; float:right;"
{{COURTdecisionBOX
! colspan="2" |Rb. Amsterdam - C/13/663563 / HA RK 19-97
 
|-
|Jurisdiction=Netherlands
| colspan="2" style="padding: 20px; background-color:#ffffff;" |[[File:courtsNL.png|center|250px]]
|Court-BG-Color=
|-
|Courtlogo=Courts_logo1.png
|Court:||[[:Category:Rb. Amsterdam (Netherlands)|Rb. Amsterdam (Netherlands)]]
|Court_Abbrevation=Rb. Amsterdam
[[Category:Rb. Amsterdam (Netherlands)]]
|Court_With_Country=Rb. Amsterdam (Netherlands)
|-
 
|Jurisdiction:||[[Data Protection in the Netherlands|Netherlands]]
|Case_Number_Name=C/13/663563 / HA RK 19-97
[[Category:Netherlands]]
|ECLI=ECLI:NL:RBAMS:2020:2602
|-
 
|Relevant Law:||[[Article 6 GDPR#1|Article 6(1) GDPR]][[Category:Article 6(1) GDPR]]
|Original_Source_Name_1=de Rechtspraak
|-
|Original_Source_Link_1=https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBAMS:2020:2602&showbutton=true&keyword=avg
|Decided:||15.05.2020
|Original_Source_Language_1=Dutch
[[Category:2020]]
|Original_Source_Language__Code_1=NL
|-
|Original_Source_Name_2=
|Published:||15.05.2020
|Original_Source_Link_2=
|-
|Original_Source_Language_2=
|Parties:||AVROTROS vs Facebook Netherlands B.V., Facebook Ireland Limited
|Original_Source_Language__Code_2=
|-
 
|National Case Number:||C/13/663563 / HA RK 19-97
|Date_Decided=15.05.2020
|-
|Date_Published=15.05.2020
|European Case Law Identifier:||<small>ECLI:NL:RBAMS:2020:2602</small>
|Year=2020
|-
 
|Appeal from:||n/a
|GDPR_Article_1=Article 6(1) GDPR
|-
|GDPR_Article_Link_1=Article 6 GDPR#1
|Language:||Dutch
|GDPR_Article_2=
[[Category:Dutch]]
|GDPR_Article_Link_2=
|-
|GDPR_Article_3=
|Original Source:||[https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBAMS:2020:2602&showbutton=true&keyword=avg de Rechtspraak (in NL)]
|GDPR_Article_Link_3=
|}
 
|EU_Law_Name_1=
|EU_Law_Link_1=
|EU_Law_Name_2=
|EU_Law_Link_2=
 
|National_Law_Name_1=
|National_Law_Link_1=
|National_Law_Name_2=
|National_Law_Link_2=
 
|Party_Name_1=AVROTROS
|Party_Link_1=
|Party_Name_2=Facebook Netherlands B.V.  
|Party_Link_2=
|Party_Name_3=Facebook Ireland Limited
|Party_Link_3=
 
|Appeal_From_Body=
|Appeal_From_Case_Number_Name=
|Appeal_From_Status=
|Appeal_From_Link=
|Appeal_To_Body=
|Appeal_To_Case_Number_Name=
|Appeal_To_Status=
|Appeal_To_Link=
 
|Initial_Contributor=
|
}}


The Amsterdam Court of First Instance ruled that Facebook was taking enough measures to block fake/fraudulent ads on its platform and that Facebook must share information identifying the advertisers behind these ads.  
The Amsterdam Court of First Instance ruled that Facebook was taking enough measures to block fake/fraudulent ads on its platform and that Facebook must share information identifying the advertisers behind these ads.  
Line 64: Line 93:
The decision below is a machine translation of the original. Please refer to the Dutch original for more details.
The decision below is a machine translation of the original. Please refer to the Dutch original for more details.


<pre>DECISION
<pre>
This statement is anonymized according to the anonymization guidelines.
Search result - view document
ECLI:NL:RBAMS:2020:2602


The parties will hereinafter be referred to as [applicant] and Google.
Authority
1 The procedure
    Court of Amsterdam
1.1.
Date of pronunciation
    15-05-2020
Date of publication
    15-05-2020
Case number
    C/13/682421 / KG ZA 20-336
Jurisdictions
    Civil Justice
Special features
    Interim injunction
Content indication


The course of the procedure is evidenced by
    Interlocutory proceedings. For the time being, the Internet platform Facebook has taken sufficient measures to prevent fake bitcoin advertisements with Dutch celebrities. Only a claim for the provision of identifying data of advertisers has been granted.
Locations
    Rechtspraak.nl
    Enriched pronunciation


the application with productions 1-7, received at the Registry on 18 March 2019,
Ruling


the amended application directed against Google Netherlands B.V., received at the Court Registry on 26 March 2019,
judgment
COURT IN AMSTERDAM


the parties' unanimous request of 18 June 2019 that the oral hearing should first deal with the formal questions in this case,
Private law division, civil judge in preliminary relief proceedings


the letter of 30 April 2019 on behalf of [the applicant], together with a supplement to the application,
Case number / reel number: C/13/682421 / KG ZA 20-336 AB/MB


the interim decision of 9 May 2019 providing for an oral hearing,
Judgment in preliminary relief proceedings of 15 May 2020


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,
in the matter of
 
1 [plaintiff sub 1] ,
the defence with productions 1-23, received at the Registry on 24 June 2019,
 
living at [residence] ,
 
2. the association
 
AVROTROS,
 
located in Hilversum,
 
plaintiffs by summons in abridged term of 16 April 2020,
 
Lawyers H.A.J.M. van Kaam and J.G.J. van Groenendaal in Amsterdam,
 
by
 
1. the private limited liability company
 
FACEBOOK NETHERLANDS B.V.,
 
based in Amsterdam,
 
2. the company under foreign law
 
FACEBOOK IRELAND LIMITED,
 
based in Dublin,
 
defendants,
 
Lawyers Mr. J.P. van den Brink and Mr. J.R. Spauwen in Amsterdam.
1 The proceedings


the minutes of the oral procedure of 25 September 2019, together with the (procedural) documents referred to therein.
At the hearing on 1 May 2020, plaintiffs, hereinafter [plaintiff sub 1] and AVROTROS, explained the claims as described in the writ of summons. The defendants, hereinafter jointly Facebook and separately Facebook Netherlands and Facebook Ireland, put forward a defence. In future, the name Facebook will also be used to refer to the platform itself.


1.2.
Both parties have submitted written documents and/or a written pleading.


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.
Judgment has been pronounced at this time.
1.3.


The decision is adopted today. The court informed the parties of the postponed decision date.
Due to the corona crisis, only the lawyers of the parties were present at the hearing, in addition to the judge in preliminary relief proceedings and the clerk of the court. For [plaintiff sub 1] and AVROTROS: mrs. Van Kaam and Van Groenendaal, for Facebook: mrs. Van den Brink and Spauwen.
2 The facts
2 The facts
2.1.
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]'.
[plaintiff sub 1] is presenter of the news and current affairs program EenVandaag. AVROTROS is the broadcaster that broadcasts that programme and the employer of [plaintiff sub 1].
2.2.
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.
Facebook is an internet platform that is part of the 'social media', intended for posting messages, photos and videos ('content') by users. Facebook also operates 'Instagram', which is used in particular for posting visual material. More than 2.8 billion people worldwide use this platform.
2.3.
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.
Facebook's revenue model is mainly based on revenue from advertisements. Advertisers can place advertisements on Facebook and Instagram for a fee. An advertisement is always linked to a Facebook account.
 
Facebook has an advertising policy to ensure that advertisements comply with all applicable laws, regulations and guidelines, including those of Facebook itself. Crypt currency advertisements are subject to Facebook's prior approval under that policy.
2.4.
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/.
Since October 2018, advertisements have appeared on Facebook and Instagram associating Dutch celebrities, including media entrepreneur [name of media entrepreneur] and, since August 2019, also [plaintiff sub 1], with Bitcoin and Bitcoin investments. In the advertisements, in which these Dutch celebrities are portrayed as successful Bitcoin investors, their photo and name are used without their consent. Users who respond to the advertisements and pay amounts in return do not receive Bitcoins, but lose their money. A characteristic of such advertisements is that only after clicking on the message that appears first (by clicking on the 'More information' block) does one land at the passages about 'Bitcoin investments'.
2.5.
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.
According to a publication in the Volkskrant newspaper on 12 April 2019, a damage of 1.7 million had been reported to the National Government's Fraud Helpdesk as a result of the fake advertisements. According to NRC Handelsblad, this had risen to 2.9 million euros on 15 January 2020.
2.6.
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.
In a letter dated 11 September 2019, [plaintiff sub 1] summoned Facebook to take measures to counter and prevent such fake advertisements. The injunction letter includes an example of an advertisement with the name and photo of [plaintiff sub 1] dated 20 August 2019.
2.7.
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:
By letter of 4 October 2019 Facebook rejected liability for the fake advertisements. The letter also stated that the ad in question had been removed, that Facebook Ireland had blocked access to Facebook from the account associated with the ad, and that it was taking steps to prevent those associated with this type of ad from continuing to use Facebook in the future.
2.8.
 
By judgment of 11 November 2019, the Interim Injunction Judge of this court ordered Facebook to cease and desist from unlawful acts against [name of media entrepreneur] - consisting of allowing bogus advertisements containing the name or portrait of [name of media entrepreneur] to appear in the ad and/or the website to which the ad is linked to Bitcoin or other crypto currency on Facebook.
2.9.


    https://www.sin-nl.org/doofpot/ [internet address] /
In December 2019, Facebook Inc. in California filed lawsuits against companies offering 'Cloaking services' that allow advertisers to circumvent Facebook's guidelines.
2.10.


    https://www.sin-nl.org/ [internet address] /
plaintiff sub 1] challenged screenshots taken on


    https://drimble.nl/gezondheid [internet address]
31 March and 5 April 2020, similar advertisement(s) were shown on Facebook, with his name and image and also referring to the Corona crisis.
2.11.


    https://www.sin-nl.org/ [internet address] /
In a letter dated 6 April 2020, [plaintiff sub 1] again summoned Facebook to take measures to prevent these advertisements and to provide the data by which these 'advertisers' can be identified to him.
2.12.


    https://www.zwartelijstartsen.nl/ [internet address]
By letter of 14 April 2020 Facebook again rejected liability. This letter also states that Facebook Ireland had already blocked the 'advertiser' in question before the summons of 6 April 2020 and installed a 'banhammer' for this account, i.e. Facebook can no longer be used via this account.


    https://www.zwartelijstartsen.com/ [internet address]
The letter also discusses the measures taken by Facebook to prevent the reappearance of such advertisements.
2.13.


    https://www.bigregister.nl/binaries/bigregister/documenten/publicaties/ [internet address]
On 28 April 2020, [name manager] , TPM (Technical Program Manager of Facebook 'within the Anti-Cloaking Team') made a statement (Affidavit) about the measures that Facebook takes to prevent the so-called 'cloaking'. It says about cloaking and cloakers:


(The URLs are referred to below by the numbers mentioned above).
"Cloaking is when a web page used in an ad contains different content when shown to Facebook's review system compared to when the same web page is viewed by Facebook's users. (...) Cloakers actively try to determine when someone accessing the page is a real person vs when it's a automates scan".
2.8.
This statement goes on to say the rest:


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:
"When Facebook encounters these policy-violating ads, it takes them down as well as disables the relevant account. Facebook is investing heavily to prevent cloaking on its system, and is examining additional ways where Facebook can more quickly detect the types of ads and advertisers that use this technique. Facebook utilizes a combination of factors to detect this behaviour, including proactive analysis and user reports. (…)


"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.
While Facebook is constantly improving its methods to detect cloaking, it is not possible to prevent all malicious ads from appearing on Facebook, oftentimes because the malicious actors behind these acts are reacting to every enforcement action taken".
2.14.


At this time, Google has decided not to take action on these URLs. (…)”
As production 21, [claimant sub 1] challenged a screenshot of an advertisement that was supposed to have appeared on 1 April 2020.
2.9.
2.15.


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.
Production 5 of Facebook is a statement (Affidavit) by [name director] , director of Facebook Netherlands, which states, inter alia, the following:
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).
"Because Facebook Netherlands B.V. does not operate, control, or host content available om the Facebook Service and is not the entity with which any Facebook users contract for the provision of the Facebook Service, Facebook Netherlands has no ability to block ads, remove ads, or produce user data.
3 The request and the defence
3 The dispute
3.1.
3.1.


The [applicant] requests the Court - after amendment of the application - to declare Google's decision to be provisionally enforceable:
Plaintiff sub 1] and AVROTROS claim that Facebook should be ordered to pay a penalty:


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;
I. to cease and desist any unlawful actions against them, consisting of allowing ads on its forums Facebook and Instagram where the name and portrait of [plaintiff sub 1] in the ad and/or the website to which this ad is linked to (investments in) Bitcoin or other crypto currency, within five days after service of this judgment;


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;
II. provide all identifying data of the parties responsible for the advertisements mentioned under I. within seven days after service of this judgment, including but not limited to name, email address, telephone number, date and time of registration and IP addresses and other usage and payment data to the extent Facebook has such identifying data.


III order that the costs of the proceedings be borne by the applicant.
Finally, they claim an order from Facebook to pay the legal costs and follow-up costs.
3.2.
3.2.


3.2. In summary, the [applicant] submits his application.
Facebook argues, among other things, that it is already doing everything in its reasonable power to counteract these advertisements. According to Facebook, however, it is impracticable and technically impossible to guarantee that such advertisements will no longer appear.
3.3.


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.
The arguments of the parties will be discussed in more detail below, insofar as they are relevant.
4 The assessment
Jurisdiction
4.1.


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.
Facebook Netherlands has its registered office in Amsterdam, so that (the interim injunction judge of) the District Court of Amsterdam has jurisdiction. By virtue of Article 7 paragraph 1 of the Dutch Code of Civil Procedure (Rv), this court also has jurisdiction in respect of the other defendant, Facebook Ireland.
3.3.
4.2.


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.
Apart from the above, the following applies. The Dutch court has jurisdiction in cases involving obligations in tort if the harmful event has occurred or may occur in the Netherlands (Article 6, opening words and under e, Rv, and Article 7(2) of Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the recast EEX Regulation)).


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].
Now that the centre of interests of [plaintiff sub 1] and AVROTROS is located in the Netherlands and, moreover, the advertisements in question are accessible in the Netherlands and are aimed at the Dutch public, the jurisdiction of this court can already be assumed on that ground as well, i.e. apart from Article 7(1) of the Rv. The circumstance that Facebook Netherlands may not be able to comply with the requested provisions relates to the enforceability of the judgment and not to jurisdiction. Facebook's defence of jurisdiction therefore does not apply.


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.
Applicable law
3.4.
4.3.


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.
The basis of the claims of [plaintiff sub 1] and AVROTROS is unlawful conduct by Facebook. The alleged damage also occurs in the Netherlands, since it concerns in particular reputational damage, the centre of interests of [plaintiff sub 1] and AVROTROS is located in the Netherlands and the advertisements are aimed at the Dutch public. On the basis of Article 4(1) of Regulation (EC) 864/2007 on the law applicable to non-contractual obligations (Rome II), Dutch law is therefore applicable.
3.5.


The points of view of the parties are discussed in more detail below, insofar as they are relevant.
Choice of court and choice of law clause?
4 The assessment
4.4.
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].
To the extent that Facebook with its reliance on 4.4 of the Facebook Terms of Service is of the opinion that a choice of forum and a choice of law have been agreed, since [plaintiff sub 1] and AVROTROS are not consumers, that is wrong. The clause reads as follows:


Applicable law
"If you are a consumer and reside in a member state of the EU, the laws of that member state shall apply to any claims, causes of action or disputes you may have against us arising out of or related to these Terms or the Facebook products ("Claim"). You may bring this claim before any court having jurisdiction in that Member State that has jurisdiction over the claim. In all other cases, you agree that the claim must be heard in a court of competent jurisdiction in Ireland and that Irish law governs these Terms and all claims regardless of the conflict of laws rules".
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.
This article relates to disputes arising from the use of a Facebook account and not to alleged unlawful actions in relation to advertisements placed by third parties that have nothing to do with the accounts of [plaintiff sub 1] and AVROTROS, as in this case. This is irrespective of whether a reference in these terms and conditions is a legally agreed forum and choice of law clause and irrespective of the question why [plaintiff sub 1], in his capacity as a Facebook user with whom he would be bound by these terms and conditions of service, could not be regarded as a consumer.


The scope of the application
(Urgent) interest
4.3.
4.5.


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.
Claimant sub 1] has a reasonable interest as referred to in Section 21 of the Copyright Act to oppose the distribution of his portrait if it is used for scams and misleading messages. Facebook has not disputed that in itself either.
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] .
Contrary to what Facebook argues, AVROTROS also has a sufficient interest in the claims, on the sole ground that, as the employer of [plaintiff sub 1], it has an interest in one of its 'faces' being protected as much as possible from connection with fraudulent practices that could be harmful to the reputation of both [plaintiff sub 1] and AVROTROS. Insofar as, as [plaintiff sub 1] and AVROTROS claim, there is still a concrete threat that the fake advertisements with the portrait and/or the name of [plaintiff sub 1] will continue to appear, which cannot be ruled out at the moment, their interest is also urgent.
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.
The advertisements
4.6.
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).
The parties agree that the advertisements described under 2.4 and 2.10 are fraudulent "fake advertisements", in that they use the name of [plaintiff under 1] without his consent, to commend fake investments in Bitcoins. Similar advertisements use the names of other Dutch celebrities, without their consent, which are completely inconsistent with Facebook's own Advertising Policy. The parties also agree to the extent that they both believe that these practices, which they describe as 'scams', should be stopped. Placing these advertisements is not only detrimental to the honor and good name of [plaintiff sub 1], but also to the reputation of Facebook.


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.
Safeguard clause
4.7.
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 parties do not agree on whether Facebook can invoke Article 6:196c of the Dutch Civil Code, which stipulates that a 'service provider of the information society' to which category Facebook could be counted, depending on the services it provides, is under certain conditions not liable for information disseminated by third parties via its platform.
 
In so far as this would be the case, this can only be invoked if the internet service provider:
 
(paragraph 4):
 
"a. is unaware of the activity or information of an unlawful nature (...) or:
 
b. as soon as it knows, or ought reasonably to know, promptly removes or disables access to the information.
 
Incidentally, this indemnification does not stand in the way of obtaining a court order or injunction (Section 6:196c (5) of the Dutch Civil Code). Such an injunction may also include a forward-looking measure, as can be deduced from recital 45 of the preamble to the Directive on which this article is based:
 
(Directive on electronic commerce (Directive 2000/31/EC))


The assessment framework
"The limitation of (...) liability of service providers acting as intermediaries does not affect the possibility of taking different types of injunctions. Such measures consist in particular of judicial or administrative decisions ordering the cessation or prevention of an infringement, including the removal or rendering inaccessible of illegal information".
 
General Filter Commandment
4.8.
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.
Facebook has also invoked the provisions of Article 15 of the Directive, which prohibits a general monitoring obligation. Recital 47 of the preamble to the Directive states that 'Member States may not impose monitoring obligations of a general nature on service providers'. However, it has been added: 'This does not apply to surveillance obligations in special cases and, in particular, does not affect measures taken by national authorities in accordance with national law'.
 
The starting point is therefore, on the one hand, that a general filtering ban is not allowed and, on the other hand, that no excessive obligations should be imposed on the Internet service provider. On the other hand, there is room for the imposition of a sufficiently specific injunction to take action - also preventively - against acts that must be deemed unlawful on the basis of Section 6:162 of the Dutch Civil Code.
 
Interim conclusion
4.9.
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.
The above means that Facebook's general defences against the claimed provisions do not serve any purpose.
The claim under (3.1) I. Is Facebook acting unlawfully because it does not take sufficient measures?
4.10.
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.
These preliminary relief proceedings therefore focus on the questions: what can be demanded of Facebook in the context of countering the fake advertisements and what can it be obliged to do vis-à-vis [plaintiff sub 1] and AVROTROS, in the context of the social care it must observe, on pain of a penalty. More specifically on the question whether Facebook is doing everything that can reasonably be asked of it in this specific case to keep the advertisements out, namely by (a.) removing them and (b.) preventing them from popping up again and again.


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.
a. Removal
4.11.
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.
Concretely, these preliminary relief proceedings concern four advertisements that were visible on Facebook, one in August 2019, the other between 31 March and 5 April 2020. Facebook argues that these advertisements were all detected by its control system ('ads review system') and that in any event three of the four advertisements had already been removed before [plaintiff sub 1] had summoned it to do so and/or reported the advertisements. Furthermore, the accounts of these advertisers are 'banned', which means that access to Facebook is no longer possible via those accounts. Facebook further pointed out in this respect that it also uses a technology that makes use of the so-called 'Sparse model'. This model analyses the characteristics of advertisements in order to trace advertising accounts that may be linked to previously identified malicious practices. In addition, after the previous summary proceedings (with [name of media entrepreneur] as plaintiff) Facebook has introduced a new option since 10 December 2019 with which misleading advertisements, such as the 'celeb-bait' advertisements at issue here, can be reported, of which [plaintiff sub 1] and AVROTROS - as denied by Facebook - incidentally did not make use for the reporting of the fake advertisements.
 
For the time being there is insufficient reason to doubt the correctness of what Facebook has stated on this point. Facebook has therefore made it sufficiently plausible that it took timely action to promptly remove the unlawful advertisements and that it has expanded the possibilities for the public to report these advertisements. Plaintiff sub 1] and AVROTROS also argued that the possibility to block advertisements would not exist for advertisements that appear on the side of the screen. Facebook has objected that this is the case, only then must be clicked on 'hide', which according to Facebook has the same effect.
 
b. Preventive measures
4.12.
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).
The main bone of contention is whether Facebook can be required to do more than it is doing now to prevent advertisements like this from appearing on Facebook. Facebook has pointed out that for these advertisements use is made of so-called 'cloaking' technique, as a result of which the landing page on which the public ends up is different from the innocent-looking page that is presented to (the systems of) Facebook. In all four advertisements in question, 'cloaking' appeared to be in play.
4.13.
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).
Facebook Ireland has pointed out that even after the verdict in the case of [name of media entrepreneur], it has taken and continues to take numerous measures to prevent advertisers from using cloaking to place bogus advertisements. It has promised to continue to do so. In addition to her ad control systems, she apparently has an 'anti-cloaking team', she has installed a separate 'tool' to make it easier to report this type of advertisements, after which they are immediately blocked, and she has instituted proceedings against companies that focus on bypassing the systems via cloaking. It is plausible that these measures will have (some) effect, given the fact that - apparently - the celeb-bait advertisements did not or hardly show up in the period from September 2019 to March 2020. Facebook has rightly argued that it must have sufficiently substantiated in what respect it fell short before a conviction against it, issued with penalty payments, would be appropriate. The mere circumstance that it was recently possible to place three more advertisements, apparently circumventing its control systems, is not sufficient for this purpose, all the less now that it is plausible that Facebook promptly removed them. Plaintiff sub 1] and AVROTROS do still argue that 'cloaking' is not their problem, but that of Facebook, and that the case [name of media entrepreneur] teaches that the fake advertisements are finished as long as they are banned with a penalty payment, but that is all too easily argued. Moreover, it would go too far to oblige Facebook to completely prevent advertisements with the name and/or photo of [plaintiff sub 1] from ending up on Facebook. After all, this would also prevent lawful advertisements, such as the announcement by AVROTROS of the programme 'Wie is de Mol' (Who is the mole), in which [plaintiff sub 1] appeared, mentioned by Facebook.
4.14.


The assessment of the content
The conclusion is that in the given circumstances, in which the fake adverts do not systematically appear on its platforms, but occasionally appear to circumvent its measures, Facebook has for the time being done what is reasonable in its power to prevent the fake adverts. For the time being, therefore, her conduct is not considered unlawful vis-à-vis [plaintiff sub 1] and AVROTROS, because it has not been sufficiently specified what additional measures Facebook could and should take at this time. The assertion of [plaintiff sub 1] that the provisions in the General Data Protection Regulation (AVG) can carry the measures desired by him is not valid, as these do not relate to preventive measures.
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.
Conclusion with regard to the claimed under I
4.15.
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.
It is concluded that the claim under I above is rejected. In this outcome, the question of whether (in addition to Facebook Ireland) Facebook Netherlands should be deemed able to satisfy the claim under I, which Facebook disputes, does not need to be answered.
 
The claim under II
4.16.
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.
Facebook has no objection of its own to the provision of the claimed Identifying Information, except that, in its view, only Facebook Ireland is in a position to do so and that it considers that it is not for it but for the court to decide whether such a decision should be taken. Nor, in her opinion, is there any basis for granting this claim against AVROTROS. However, as the employer of [plaintiff sub 1], AVROTROS has, in the context of being a good employer, an independent interest in being able to dispose of those data.
4.17.
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.
For the time being, with reference to a statement of [name of director] (cited in 2.15), Facebook has made it sufficiently plausible that Facebook Netherlands cannot comply with an order to provide identifying data, because it is not authorised to do so and does not enter into a contract with users.
4.18.
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.
The criteria formulated by the Court of Appeal of Amsterdam in its judgment of 24 June 2004 (ECLI:NL:HR:2005: AU4019 ([name of party])) (ratified by the Supreme Court) can (still today) be taken as a starting point in the considerations to be made by the court. In that judgment, the Court of Appeal ruled that an obligation for the service provider to provide such data to a third party may be justified if the following conditions are met:
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.
a. the possibility that the information, viewed in isolation, is unlawful and harmful vis-à-vis the third party is sufficiently plausible;
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.
b. the third party has a real interest in obtaining the data;
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.
c. it is plausible that, in the specific case, there is no less far-reaching possibility of retrieving the data;
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.
d. balancing the interests of the third party and the internet service provider involved means that the interests of the third party should prevail.
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:
As follows from the above, these conditions are met in this case. Article 6.1 of the AVG also provides scope for the provision of such information and for the rest, in this specific case there are no grounds on the basis of which that claim should be rejected.
4.19.


- court fee € 639
The claim under II will therefore be allowed, albeit only against Facebook Ireland, as mentioned below in the judgment, with moderation and maximisation of the penalty payments claimed.
4.20.


- lawyer's salary € 1,086 (2 points × EUR 543 fee)
Contrary to what [plaintiff sub 1] and AVROTROS have argued, Facebook has not had to understand that the claim is also aimed at future advertisements. After all, Facebook has rightly argued that this interpretation is at odds with the claim to comply with the judgment 'within seven days'. This conviction therefore only relates to advertisements that have already appeared.


total € 1,725
Final conclusion
4.21.


The expenses shall be budgeted ex officio and shall be attributable in the manner stated in the decision.
In conclusion, the claim under I is rejected, and the claim under II is allowed, as indicated below. Since this means that both parties are partially (dis)successful, the costs of the proceedings are settled, as stated below in the operative part of the judgment.
5 The decision
5 The decision


The court
The judge in preliminary relief proceedings
5.1.
5.1.


Rejects the request,
Condemns Facebook Ireland to provide, within seven days of service of this judgment, all identifying information of the parties responsible for the advertisements referred to in points 2.4 and 2.10, including name,
 
email address, telephone number, date and time of registration, IP addresses and other usage and payment data, if available to Facebook Ireland,
5.2.
5.2.


orders [the applicant] to pay the costs of the proceedings, assessed to date by Google at € 1,725,
provides that Facebook Ireland shall be liable to periodic penalty payments of €1,000 for each day (of each day) that it fails to comply with the judgment referred to in point 5.1, up to a maximum of €50,000,
5.3.
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,
declares this judgment provisionally enforceable,
5.4.
5.4.


declares the cost orders under 5.2 and 5.3 enforceable on a provisional basis.
set off the costs of the proceedings in such a way that each party bears its own costs,
5.5.
 
rejects the more or otherwise advanced.


This order was issued by M.C.H. Broesterhuizen, Judge, and E.M. Rocha, Registrar, and pronounced publicly on 23 December 2019.
This judgment has been rendered by A.J. Beukenhorst, judge in preliminary relief proceedings, assisted by M. Balk, registrar, and publicly pronounced on 15 May 2020.
</pre>
</pre>

Latest revision as of 16:13, 10 March 2022

Rb. Amsterdam - C/13/663563 / HA RK 19-97
Courts logo1.png
Court: Rb. Amsterdam (Netherlands)
Jurisdiction: Netherlands
Relevant Law: Article 6(1) GDPR
Decided: 15.05.2020
Published: 15.05.2020
Parties: AVROTROS
Facebook Netherlands B.V.
Facebook Ireland Limited
National Case Number/Name: C/13/663563 / HA RK 19-97
European Case Law Identifier: ECLI:NL:RBAMS:2020:2602
Appeal from:
Appeal to:
Original Language(s): Dutch
Original Source: de Rechtspraak (in Dutch)
Initial Contributor: n/a

The Amsterdam Court of First Instance ruled that Facebook was taking enough measures to block fake/fraudulent ads on its platform and that Facebook must share information identifying the advertisers behind these ads.

English Summary

Facts

Fraudulent ads using names and pictures of Dutch celebrities are shown on Facebook and Instagram since October 2018. The Claimant, who is a presenter of the news and current affairs programme broadcasted by AVROTROS, is one of the celebrities affected. In November 2019 a similar lawsuit was won by another celebrity, forcing Facebook to implement strict controls and take down fraudulent bitcoin ads. However, in March and April 2020 the Claimant saw similar fraudulent ads with his picture and name: this time the ads referred to the Corona crisis.

Dispute

The Claimant and AVROTROS asked the Court to order Facebook to: 1. To find and take down fraudulent ads within 5 days from this judgement; 2. Share information, identifying the advertisers behind these ads within 7 days from the judgement. Information should include name, email, phone number, date and time of registration, IP addresses and other user and payment data Facebook has in its possession.

Facebook claims that the measures they already have in place are good enough and that it is not possible to filter out all fraudulent ads. On the second point, Facebook did not have specific objections, however the company believed that only Facebook Ireland could share this data and only on a Court’s order.

Holding

The Court ruled that the measures Facebook has put in place to detect and remove fake/fraudulent ads were enough. On the second point, the Court considered the existing case law in the Netherlands. In 2004 the Amsterdam Court of Appeal ruled that an obligation for the service provider to provide data to a third party may be justified if the following conditions are met: a. the possibility that the information is unlawful and harmful to the third party is sufficiently established; b. the third party has a real interest in obtaining the data; c. there is no less drastic way to retrieve the data; d. the balance of the interests of the third party and the internet service provider is in favor of the third party.

The Court ruled, that all these conditions were met in a present case and article 6(1) of the GDPR gives room for such data sharing.
 

Comment

Share your comment here!

Further Resources

Share blogs or news articles here!

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.

This statement is anonymized according to the anonymization guidelines.
Search result - view document
ECLI:NL:RBAMS:2020:2602

Authority
    Court of Amsterdam
Date of pronunciation
    15-05-2020
Date of publication
    15-05-2020 
Case number
    C/13/682421 / KG ZA 20-336
Jurisdictions
    Civil Justice
Special features
    Interim injunction
Content indication

    Interlocutory proceedings. For the time being, the Internet platform Facebook has taken sufficient measures to prevent fake bitcoin advertisements with Dutch celebrities. Only a claim for the provision of identifying data of advertisers has been granted.
Locations
    Rechtspraak.nl
    Enriched pronunciation 

Ruling

judgment
COURT IN AMSTERDAM

Private law division, civil judge in preliminary relief proceedings

Case number / reel number: C/13/682421 / KG ZA 20-336 AB/MB

Judgment in preliminary relief proceedings of 15 May 2020

in the matter of
1 [plaintiff sub 1] ,

living at [residence] ,

2. the association

AVROTROS,

located in Hilversum,

plaintiffs by summons in abridged term of 16 April 2020,

Lawyers H.A.J.M. van Kaam and J.G.J. van Groenendaal in Amsterdam,

by

1. the private limited liability company

FACEBOOK NETHERLANDS B.V.,

based in Amsterdam,

2. the company under foreign law

FACEBOOK IRELAND LIMITED,

based in Dublin,

defendants,

Lawyers Mr. J.P. van den Brink and Mr. J.R. Spauwen in Amsterdam.
1 The proceedings

At the hearing on 1 May 2020, plaintiffs, hereinafter [plaintiff sub 1] and AVROTROS, explained the claims as described in the writ of summons. The defendants, hereinafter jointly Facebook and separately Facebook Netherlands and Facebook Ireland, put forward a defence. In future, the name Facebook will also be used to refer to the platform itself.

Both parties have submitted written documents and/or a written pleading.

Judgment has been pronounced at this time.

Due to the corona crisis, only the lawyers of the parties were present at the hearing, in addition to the judge in preliminary relief proceedings and the clerk of the court. For [plaintiff sub 1] and AVROTROS: mrs. Van Kaam and Van Groenendaal, for Facebook: mrs. Van den Brink and Spauwen.
2 The facts
2.1.

[plaintiff sub 1] is presenter of the news and current affairs program EenVandaag. AVROTROS is the broadcaster that broadcasts that programme and the employer of [plaintiff sub 1].
2.2.

Facebook is an internet platform that is part of the 'social media', intended for posting messages, photos and videos ('content') by users. Facebook also operates 'Instagram', which is used in particular for posting visual material. More than 2.8 billion people worldwide use this platform.
2.3.

Facebook's revenue model is mainly based on revenue from advertisements. Advertisers can place advertisements on Facebook and Instagram for a fee. An advertisement is always linked to a Facebook account.

Facebook has an advertising policy to ensure that advertisements comply with all applicable laws, regulations and guidelines, including those of Facebook itself. Crypt currency advertisements are subject to Facebook's prior approval under that policy.
2.4.

Since October 2018, advertisements have appeared on Facebook and Instagram associating Dutch celebrities, including media entrepreneur [name of media entrepreneur] and, since August 2019, also [plaintiff sub 1], with Bitcoin and Bitcoin investments. In the advertisements, in which these Dutch celebrities are portrayed as successful Bitcoin investors, their photo and name are used without their consent. Users who respond to the advertisements and pay amounts in return do not receive Bitcoins, but lose their money. A characteristic of such advertisements is that only after clicking on the message that appears first (by clicking on the 'More information' block) does one land at the passages about 'Bitcoin investments'.
2.5.

According to a publication in the Volkskrant newspaper on 12 April 2019, a damage of 1.7 million had been reported to the National Government's Fraud Helpdesk as a result of the fake advertisements. According to NRC Handelsblad, this had risen to 2.9 million euros on 15 January 2020.
2.6.

In a letter dated 11 September 2019, [plaintiff sub 1] summoned Facebook to take measures to counter and prevent such fake advertisements. The injunction letter includes an example of an advertisement with the name and photo of [plaintiff sub 1] dated 20 August 2019.
2.7.

By letter of 4 October 2019 Facebook rejected liability for the fake advertisements. The letter also stated that the ad in question had been removed, that Facebook Ireland had blocked access to Facebook from the account associated with the ad, and that it was taking steps to prevent those associated with this type of ad from continuing to use Facebook in the future.
2.8.

By judgment of 11 November 2019, the Interim Injunction Judge of this court ordered Facebook to cease and desist from unlawful acts against [name of media entrepreneur] - consisting of allowing bogus advertisements containing the name or portrait of [name of media entrepreneur] to appear in the ad and/or the website to which the ad is linked to Bitcoin or other crypto currency on Facebook.
2.9.

In December 2019, Facebook Inc. in California filed lawsuits against companies offering 'Cloaking services' that allow advertisers to circumvent Facebook's guidelines.
2.10.

plaintiff sub 1] challenged screenshots taken on

31 March and 5 April 2020, similar advertisement(s) were shown on Facebook, with his name and image and also referring to the Corona crisis.
2.11.

In a letter dated 6 April 2020, [plaintiff sub 1] again summoned Facebook to take measures to prevent these advertisements and to provide the data by which these 'advertisers' can be identified to him.
2.12.

By letter of 14 April 2020 Facebook again rejected liability. This letter also states that Facebook Ireland had already blocked the 'advertiser' in question before the summons of 6 April 2020 and installed a 'banhammer' for this account, i.e. Facebook can no longer be used via this account.

The letter also discusses the measures taken by Facebook to prevent the reappearance of such advertisements.
2.13.

On 28 April 2020, [name manager] , TPM (Technical Program Manager of Facebook 'within the Anti-Cloaking Team') made a statement (Affidavit) about the measures that Facebook takes to prevent the so-called 'cloaking'. It says about cloaking and cloakers:

"Cloaking is when a web page used in an ad contains different content when shown to Facebook's review system compared to when the same web page is viewed by Facebook's users. (...) Cloakers actively try to determine when someone accessing the page is a real person vs when it's a automates scan".
This statement goes on to say the rest:

"When Facebook encounters these policy-violating ads, it takes them down as well as disables the relevant account. Facebook is investing heavily to prevent cloaking on its system, and is examining additional ways where Facebook can more quickly detect the types of ads and advertisers that use this technique. Facebook utilizes a combination of factors to detect this behaviour, including proactive analysis and user reports. (…)

While Facebook is constantly improving its methods to detect cloaking, it is not possible to prevent all malicious ads from appearing on Facebook, oftentimes because the malicious actors behind these acts are reacting to every enforcement action taken".
2.14.

As production 21, [claimant sub 1] challenged a screenshot of an advertisement that was supposed to have appeared on 1 April 2020.
2.15.

Production 5 of Facebook is a statement (Affidavit) by [name director] , director of Facebook Netherlands, which states, inter alia, the following:

"Because Facebook Netherlands B.V. does not operate, control, or host content available om the Facebook Service and is not the entity with which any Facebook users contract for the provision of the Facebook Service, Facebook Netherlands has no ability to block ads, remove ads, or produce user data.
3 The dispute
3.1.

Plaintiff sub 1] and AVROTROS claim that Facebook should be ordered to pay a penalty:

I. to cease and desist any unlawful actions against them, consisting of allowing ads on its forums Facebook and Instagram where the name and portrait of [plaintiff sub 1] in the ad and/or the website to which this ad is linked to (investments in) Bitcoin or other crypto currency, within five days after service of this judgment;

II. provide all identifying data of the parties responsible for the advertisements mentioned under I. within seven days after service of this judgment, including but not limited to name, email address, telephone number, date and time of registration and IP addresses and other usage and payment data to the extent Facebook has such identifying data.

Finally, they claim an order from Facebook to pay the legal costs and follow-up costs.
3.2.

Facebook argues, among other things, that it is already doing everything in its reasonable power to counteract these advertisements. According to Facebook, however, it is impracticable and technically impossible to guarantee that such advertisements will no longer appear.
3.3.

The arguments of the parties will be discussed in more detail below, insofar as they are relevant.
4 The assessment
Jurisdiction
4.1.

Facebook Netherlands has its registered office in Amsterdam, so that (the interim injunction judge of) the District Court of Amsterdam has jurisdiction. By virtue of Article 7 paragraph 1 of the Dutch Code of Civil Procedure (Rv), this court also has jurisdiction in respect of the other defendant, Facebook Ireland.
4.2.

Apart from the above, the following applies. The Dutch court has jurisdiction in cases involving obligations in tort if the harmful event has occurred or may occur in the Netherlands (Article 6, opening words and under e, Rv, and Article 7(2) of Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the recast EEX Regulation)).

Now that the centre of interests of [plaintiff sub 1] and AVROTROS is located in the Netherlands and, moreover, the advertisements in question are accessible in the Netherlands and are aimed at the Dutch public, the jurisdiction of this court can already be assumed on that ground as well, i.e. apart from Article 7(1) of the Rv. The circumstance that Facebook Netherlands may not be able to comply with the requested provisions relates to the enforceability of the judgment and not to jurisdiction. Facebook's defence of jurisdiction therefore does not apply.

Applicable law
4.3.

The basis of the claims of [plaintiff sub 1] and AVROTROS is unlawful conduct by Facebook. The alleged damage also occurs in the Netherlands, since it concerns in particular reputational damage, the centre of interests of [plaintiff sub 1] and AVROTROS is located in the Netherlands and the advertisements are aimed at the Dutch public. On the basis of Article 4(1) of Regulation (EC) 864/2007 on the law applicable to non-contractual obligations (Rome II), Dutch law is therefore applicable.

Choice of court and choice of law clause?
4.4.

To the extent that Facebook with its reliance on 4.4 of the Facebook Terms of Service is of the opinion that a choice of forum and a choice of law have been agreed, since [plaintiff sub 1] and AVROTROS are not consumers, that is wrong. The clause reads as follows:

"If you are a consumer and reside in a member state of the EU, the laws of that member state shall apply to any claims, causes of action or disputes you may have against us arising out of or related to these Terms or the Facebook products ("Claim"). You may bring this claim before any court having jurisdiction in that Member State that has jurisdiction over the claim. In all other cases, you agree that the claim must be heard in a court of competent jurisdiction in Ireland and that Irish law governs these Terms and all claims regardless of the conflict of laws rules".

This article relates to disputes arising from the use of a Facebook account and not to alleged unlawful actions in relation to advertisements placed by third parties that have nothing to do with the accounts of [plaintiff sub 1] and AVROTROS, as in this case. This is irrespective of whether a reference in these terms and conditions is a legally agreed forum and choice of law clause and irrespective of the question why [plaintiff sub 1], in his capacity as a Facebook user with whom he would be bound by these terms and conditions of service, could not be regarded as a consumer.

(Urgent) interest
4.5.

Claimant sub 1] has a reasonable interest as referred to in Section 21 of the Copyright Act to oppose the distribution of his portrait if it is used for scams and misleading messages. Facebook has not disputed that in itself either.

Contrary to what Facebook argues, AVROTROS also has a sufficient interest in the claims, on the sole ground that, as the employer of [plaintiff sub 1], it has an interest in one of its 'faces' being protected as much as possible from connection with fraudulent practices that could be harmful to the reputation of both [plaintiff sub 1] and AVROTROS. Insofar as, as [plaintiff sub 1] and AVROTROS claim, there is still a concrete threat that the fake advertisements with the portrait and/or the name of [plaintiff sub 1] will continue to appear, which cannot be ruled out at the moment, their interest is also urgent.

The advertisements
4.6.

The parties agree that the advertisements described under 2.4 and 2.10 are fraudulent "fake advertisements", in that they use the name of [plaintiff under 1] without his consent, to commend fake investments in Bitcoins. Similar advertisements use the names of other Dutch celebrities, without their consent, which are completely inconsistent with Facebook's own Advertising Policy. The parties also agree to the extent that they both believe that these practices, which they describe as 'scams', should be stopped. Placing these advertisements is not only detrimental to the honor and good name of [plaintiff sub 1], but also to the reputation of Facebook.

Safeguard clause
4.7.

The parties do not agree on whether Facebook can invoke Article 6:196c of the Dutch Civil Code, which stipulates that a 'service provider of the information society' to which category Facebook could be counted, depending on the services it provides, is under certain conditions not liable for information disseminated by third parties via its platform.

In so far as this would be the case, this can only be invoked if the internet service provider:

(paragraph 4):

"a. is unaware of the activity or information of an unlawful nature (...) or:

b. as soon as it knows, or ought reasonably to know, promptly removes or disables access to the information.

Incidentally, this indemnification does not stand in the way of obtaining a court order or injunction (Section 6:196c (5) of the Dutch Civil Code). Such an injunction may also include a forward-looking measure, as can be deduced from recital 45 of the preamble to the Directive on which this article is based:

(Directive on electronic commerce (Directive 2000/31/EC))

"The limitation of (...) liability of service providers acting as intermediaries does not affect the possibility of taking different types of injunctions. Such measures consist in particular of judicial or administrative decisions ordering the cessation or prevention of an infringement, including the removal or rendering inaccessible of illegal information".

General Filter Commandment
4.8.

Facebook has also invoked the provisions of Article 15 of the Directive, which prohibits a general monitoring obligation. Recital 47 of the preamble to the Directive states that 'Member States may not impose monitoring obligations of a general nature on service providers'. However, it has been added: 'This does not apply to surveillance obligations in special cases and, in particular, does not affect measures taken by national authorities in accordance with national law'.

The starting point is therefore, on the one hand, that a general filtering ban is not allowed and, on the other hand, that no excessive obligations should be imposed on the Internet service provider. On the other hand, there is room for the imposition of a sufficiently specific injunction to take action - also preventively - against acts that must be deemed unlawful on the basis of Section 6:162 of the Dutch Civil Code.

Interim conclusion
4.9.

The above means that Facebook's general defences against the claimed provisions do not serve any purpose.
The claim under (3.1) I. Is Facebook acting unlawfully because it does not take sufficient measures?
4.10.

These preliminary relief proceedings therefore focus on the questions: what can be demanded of Facebook in the context of countering the fake advertisements and what can it be obliged to do vis-à-vis [plaintiff sub 1] and AVROTROS, in the context of the social care it must observe, on pain of a penalty. More specifically on the question whether Facebook is doing everything that can reasonably be asked of it in this specific case to keep the advertisements out, namely by (a.) removing them and (b.) preventing them from popping up again and again.

a. Removal
4.11.

Concretely, these preliminary relief proceedings concern four advertisements that were visible on Facebook, one in August 2019, the other between 31 March and 5 April 2020. Facebook argues that these advertisements were all detected by its control system ('ads review system') and that in any event three of the four advertisements had already been removed before [plaintiff sub 1] had summoned it to do so and/or reported the advertisements. Furthermore, the accounts of these advertisers are 'banned', which means that access to Facebook is no longer possible via those accounts. Facebook further pointed out in this respect that it also uses a technology that makes use of the so-called 'Sparse model'. This model analyses the characteristics of advertisements in order to trace advertising accounts that may be linked to previously identified malicious practices. In addition, after the previous summary proceedings (with [name of media entrepreneur] as plaintiff) Facebook has introduced a new option since 10 December 2019 with which misleading advertisements, such as the 'celeb-bait' advertisements at issue here, can be reported, of which [plaintiff sub 1] and AVROTROS - as denied by Facebook - incidentally did not make use for the reporting of the fake advertisements.

For the time being there is insufficient reason to doubt the correctness of what Facebook has stated on this point. Facebook has therefore made it sufficiently plausible that it took timely action to promptly remove the unlawful advertisements and that it has expanded the possibilities for the public to report these advertisements. Plaintiff sub 1] and AVROTROS also argued that the possibility to block advertisements would not exist for advertisements that appear on the side of the screen. Facebook has objected that this is the case, only then must be clicked on 'hide', which according to Facebook has the same effect.

b. Preventive measures
4.12.

The main bone of contention is whether Facebook can be required to do more than it is doing now to prevent advertisements like this from appearing on Facebook. Facebook has pointed out that for these advertisements use is made of so-called 'cloaking' technique, as a result of which the landing page on which the public ends up is different from the innocent-looking page that is presented to (the systems of) Facebook. In all four advertisements in question, 'cloaking' appeared to be in play.
4.13.

Facebook Ireland has pointed out that even after the verdict in the case of [name of media entrepreneur], it has taken and continues to take numerous measures to prevent advertisers from using cloaking to place bogus advertisements. It has promised to continue to do so. In addition to her ad control systems, she apparently has an 'anti-cloaking team', she has installed a separate 'tool' to make it easier to report this type of advertisements, after which they are immediately blocked, and she has instituted proceedings against companies that focus on bypassing the systems via cloaking. It is plausible that these measures will have (some) effect, given the fact that - apparently - the celeb-bait advertisements did not or hardly show up in the period from September 2019 to March 2020. Facebook has rightly argued that it must have sufficiently substantiated in what respect it fell short before a conviction against it, issued with penalty payments, would be appropriate. The mere circumstance that it was recently possible to place three more advertisements, apparently circumventing its control systems, is not sufficient for this purpose, all the less now that it is plausible that Facebook promptly removed them. Plaintiff sub 1] and AVROTROS do still argue that 'cloaking' is not their problem, but that of Facebook, and that the case [name of media entrepreneur] teaches that the fake advertisements are finished as long as they are banned with a penalty payment, but that is all too easily argued. Moreover, it would go too far to oblige Facebook to completely prevent advertisements with the name and/or photo of [plaintiff sub 1] from ending up on Facebook. After all, this would also prevent lawful advertisements, such as the announcement by AVROTROS of the programme 'Wie is de Mol' (Who is the mole), in which [plaintiff sub 1] appeared, mentioned by Facebook.
4.14.

The conclusion is that in the given circumstances, in which the fake adverts do not systematically appear on its platforms, but occasionally appear to circumvent its measures, Facebook has for the time being done what is reasonable in its power to prevent the fake adverts. For the time being, therefore, her conduct is not considered unlawful vis-à-vis [plaintiff sub 1] and AVROTROS, because it has not been sufficiently specified what additional measures Facebook could and should take at this time. The assertion of [plaintiff sub 1] that the provisions in the General Data Protection Regulation (AVG) can carry the measures desired by him is not valid, as these do not relate to preventive measures.

Conclusion with regard to the claimed under I
4.15.

It is concluded that the claim under I above is rejected. In this outcome, the question of whether (in addition to Facebook Ireland) Facebook Netherlands should be deemed able to satisfy the claim under I, which Facebook disputes, does not need to be answered.

The claim under II
4.16.

Facebook has no objection of its own to the provision of the claimed Identifying Information, except that, in its view, only Facebook Ireland is in a position to do so and that it considers that it is not for it but for the court to decide whether such a decision should be taken. Nor, in her opinion, is there any basis for granting this claim against AVROTROS. However, as the employer of [plaintiff sub 1], AVROTROS has, in the context of being a good employer, an independent interest in being able to dispose of those data.
4.17.

For the time being, with reference to a statement of [name of director] (cited in 2.15), Facebook has made it sufficiently plausible that Facebook Netherlands cannot comply with an order to provide identifying data, because it is not authorised to do so and does not enter into a contract with users.
4.18.

The criteria formulated by the Court of Appeal of Amsterdam in its judgment of 24 June 2004 (ECLI:NL:HR:2005: AU4019 ([name of party])) (ratified by the Supreme Court) can (still today) be taken as a starting point in the considerations to be made by the court. In that judgment, the Court of Appeal ruled that an obligation for the service provider to provide such data to a third party may be justified if the following conditions are met:

a. the possibility that the information, viewed in isolation, is unlawful and harmful vis-à-vis the third party is sufficiently plausible;

b. the third party has a real interest in obtaining the data;

c. it is plausible that, in the specific case, there is no less far-reaching possibility of retrieving the data;

d. balancing the interests of the third party and the internet service provider involved means that the interests of the third party should prevail.

As follows from the above, these conditions are met in this case. Article 6.1 of the AVG also provides scope for the provision of such information and for the rest, in this specific case there are no grounds on the basis of which that claim should be rejected.
4.19.

The claim under II will therefore be allowed, albeit only against Facebook Ireland, as mentioned below in the judgment, with moderation and maximisation of the penalty payments claimed.
4.20.

Contrary to what [plaintiff sub 1] and AVROTROS have argued, Facebook has not had to understand that the claim is also aimed at future advertisements. After all, Facebook has rightly argued that this interpretation is at odds with the claim to comply with the judgment 'within seven days'. This conviction therefore only relates to advertisements that have already appeared.

Final conclusion
4.21.

In conclusion, the claim under I is rejected, and the claim under II is allowed, as indicated below. Since this means that both parties are partially (dis)successful, the costs of the proceedings are settled, as stated below in the operative part of the judgment.
5 The decision

The judge in preliminary relief proceedings
5.1.

Condemns Facebook Ireland to provide, within seven days of service of this judgment, all identifying information of the parties responsible for the advertisements referred to in points 2.4 and 2.10, including name,

email address, telephone number, date and time of registration, IP addresses and other usage and payment data, if available to Facebook Ireland,
5.2.

provides that Facebook Ireland shall be liable to periodic penalty payments of €1,000 for each day (of each day) that it fails to comply with the judgment referred to in point 5.1, up to a maximum of €50,000,
5.3.

declares this judgment provisionally enforceable,
5.4.

set off the costs of the proceedings in such a way that each party bears its own costs,
5.5.

rejects the more or otherwise advanced.

This judgment has been rendered by A.J. Beukenhorst, judge in preliminary relief proceedings, assisted by M. Balk, registrar, and publicly pronounced on 15 May 2020.