Rb. Midden-Nederland - C/16/509744 / KG ZA 20-492

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Rb. Midden-Nederland - C/16/509744 / KG ZA 20-492
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Court: Rb. Midden-Nederland (Netherlands)
Jurisdiction: Netherlands
Relevant Law: Article 85 GDPR
Article 43 UAVG
Decided: 29.09.2020
Published: 30.11.2020
Parties: AVROTROS
National Case Number/Name: C/16/509744 / KG ZA 20-492
European Case Law Identifier: ECLI:NL:RBMNE:2020:4237
Appeal from:
Appeal to: Unknown
Original Language(s): Dutch
Original Source: Rechtspraak.nl (in Dutch)
Initial Contributor: Patrick Schreurs

The District Court of Central Netherlands (Rb. Midden-Nederland) held in a preliminary ruling that AVROTROS can broadcast an episode of the television program 'Opgelicht?!', in which the plaintiff was recognizably portrayed. The interest of AVROTROS as a public watchdog prevailed over the interest of the plaintiff.

English Summary[edit | edit source]

Facts[edit | edit source]

AVROTROS (defendant) is a Dutch radio and television broadcaster that is part of the Dutch public broadcasting system. It broadcasts a weekly program called ‘Opgelicht ?!’, which is a program about fraud. In one of the episodes AVROTROS plans to broadcast an item in which plaintiff is recognizably portrayed and accused of committing fraud. Plaintiff tries to prevent AVROTROS from broadcasting this item.

Dispute[edit | edit source]

The judge has to balance the interests of AVROTROS against the interests of the plaintiff.

Holding[edit | edit source]

With regards to the GDPR, the judge holds that the processing of personal data is a processing for journalistic purposes as specified in Article 85 GDPR, Article 32 of the Dutch GDPR Implementation Act (UAVG) and Article 7 of the Constitution of the Netherlands. The legal basis for the processing is Article 6(1)(f) GDPR. Plaintiff's request was denied.

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English Machine Translation of the Decision[edit | edit source]

The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.

COURT OF THE MIDDLE NETHERLANDS

Civil rights

chamber of commerce

location Utrecht

case number / cause list number: C / 16/509744 / KG ZA 20-492

Judgment in interim injunction proceedings of September 29, 2020

in the case of

[claimant] ,

residing in [residence],

plaintiff,

advocaat mr. I. Akkaya te Goes,

against

the Union

AVROTROS ,

established in Hilversum,

defendant,

attorney mr. HAJM van Kaam in Amsterdam.

The parties will hereinafter be referred to as [claimant] and Avrotros.
1 The procedure
1.1.

The course of the procedure is evidenced by:

    -

    the writ of summons dated September 29, 2020 with exhibits 1 to 6
    -

    the fax from Avrotros of September 29, 2020
    -

    the oral hearing
    -

    Avrotros' advocacy note.

1.2.

After that, judgment was set on today.
1.3.

In connection with the urgency of the case, an oral judgment was delivered on September 29, 2020. The following forms the further elaboration of this and was drawn up on 6 October 2020.
2 What is it about?
2.1.

On September 15, 2020, a camera crew from the program Avrotros Opgelicht ?! recordings made of [plaintiff] and [plaintiff] confronted with the accusation of fraud against him. According to Avrotros, [plaintiff] posed earlier this year as a real estate agent offering a property for rent, when in reality it was a property that was rented by himself and was illegal subletting. Subsequently, [claimant] concluded a lease with several 'tenants' for this property and collected rent and deposit. [claimant] disappeared from view at the time of the key transfer. According to Avrotros, [claimant] also did not pay any rent for the property himself. He uses the website [website] .nl. The Chamber of Commerce number stated on that website belongs to the real estate agency [broker] and does not belong to [claimant]. [claimant] used several names (pseudonyms) when concluding the rental agreements. According to Avrotros, [plaintiff] has also been guilty of fraud several times in the past, which is why he would have been denied another certificate of conduct (VOG) in 2018 due to recidivism.
2.2.

Avrotros wil in de uitzending van Opgelicht ?! van 29 september 2020 aandacht besteden aan de zaak en tijdens die uitzending zullen onder andere ook de op 15 september 2020 gemaakte opnames worden uitgezonden. [eiser] wil dat met deze procedure voorkomen.
3 De beoordeling

Spoedeisend belang
3.1.

Gelet op de aard van de vorderingen heeft [eiser] een voldoende spoedeisend belang om in zijn vorderingen in kort geding te worden ontvangen.

Juridische maatstaf
3.2.

Het gaat in deze zaak om een botsing van fundamentele rechten. Aan de kant van [eiser] het recht op eerbiediging van de eer en goede naam en aan de kant van Avrotros het recht op vrijheid van meningsuiting.
3.3.

All prohibitions claimed by [plaintiff] are in fact aimed at preventing Avrotros from paying attention in any way whatsoever to the case of [plaintiff]. Allocation of (one of) claimed prohibitions entails a restriction of Avrotros' right to freedom of expression as laid down in Article 7 of the Constitution and Article 10, paragraph 1, ECHR. Such a right can only be limited if this is provided for by law and is necessary in a democratic society, for example to protect the reputation and rights of others (Article 10 paragraph 2 ECHR). There is a limitation provided for by law if the publication infringes the honor and reputation of [claimant] to such an extent that it can be regarded as unlawful within the meaning of Article 6: 162 DCC.
3.4.

Which law ultimately outweighs depends on whose interest in the given circumstances is more important. When weighing both interests (in principle equivalent), the relevant factors include (i) the nature of the published statements and the seriousness of the expected consequences for those to whom those statements relate, (ii) the seriousness - viewed from the perspective of the public interest - of the abuse that is denounced, (iii) the degree to which the statements are supported by the available evidence, (iv) the preparation and formulation of the statements, (v) the authority that the medium on which the statements are made are published and (vi) the social position of the person concerned. The aforementioned circumstances are not all equally important. Which circumstances apply and what weight must be attached to them depends on the specific case.
3.5.

The appeal made by the [claimant] to portrait rights results in a similar balance of interests between the right to privacy and / or honor and reputation protected by Article 8 ECHR and the right to freedom of expression and freedom of information protected by Article 10 ECHR. .

Balancing of interests
3.6.

The importance of Avrotros is that with its program Opgelicht?! fulfills a role as a public watchdog and in that role must be able to expose all kinds of abuses, and must also be able to inform and, if necessary, warn the public. The interest of [claimant] is that through this publicity (among other things through the use of the images on which he is recognisably portrayed and the mention of his name) he is not lightly exposed to allegations as if he were a fraudster and to him unwanted publicity about his person.
3.7.

In this case, the interest of Avrotros outweighs the interest of [claimant]. The following is reason for this. It is of decisive importance that [claimant] has acknowledged the course of action outlined by Avrotros (see 2.1). Nor has he disputed that he has been guilty of fraud more often in the past. The accusations made by Avrotros against [claimant] are therefore not unfounded. From a public interest point of view, there is reason to pay attention to this wrongdoing and warn people about it. The recognizable portrayal of [claimant] is legitimate in this respect, now that it became apparent during the hearing that the use of different names (pseudonyms) was part of his working method. Mere mention of his name as a warning will therefore not be very effective. On the other hand, [claimant] has acknowledged that he has always seen the injured parties in person before they signed the lease. It is also taken into account that [claimant] has no permanent place of residence and residence and is not registered in the Municipal Personal Records Database. He is therefore in fact impossible to find for the disadvantaged.
3.8.

The fact that [plaintiff] states that he regrets his actions and has himself contacted the police to report and will no longer be guilty of such practices in the future, carries little weight in this case. As mentioned above, it is not the first time that [plaintiff] has been guilty of such practices. The preliminary relief judge therefore considers the risk of recidivism to be present. The other circumstances mentioned by him, such as the possible loss of his job, the small community where he lives, which will cause the impact of the broadcast to be great and the consequences this will have for his children and ex-wife, weighing in its recognition, nor does it have sufficient weight in the scale.
3.9.

[Plaintiff] has further stated that Avrotros has not given him sufficient opportunity to hear the contrary. According to [claimant] he offered to tell Avrotros several times to tell his side of the story, but Avrotros did not respond. Although in general, offering a rebuttal by Avrotros is part of its due care, there is no absolute right to rebuttal. The Preliminary Relief Judge is of the opinion that in this specific case, where [plaintiff] has acknowledged the manner in which he is accused, Avrotros has not acted unlawfully towards [plaintiff] by not offering him any opportunity to hear back.
3.10.

The appeal made by [claimant] on the General Data Protection Regulation (GDPR) will also be rejected in view of the foregoing. The recognizable portrayal of [claimant] in the program Opgelicht?! is processing for journalistic purposes. This processing is, also in view of Article 85 GDPR, Article 43 of the GDPR Implementation Act and Article 7 of the Constitution, a lawful processing on the basis of the provisions of art. 6 para.1 lit.f GDPR.
3.11.

After weighing up the mutual interests, the preliminary relief judge concludes that it is unlikely that a court judge - later judging - will rule that the broadcast is unlawful towards [plaintiff]. The claims of [claimant] are therefore not eligible for allowance.

Litigation costs
3.12.

As the unsuccessful party, [claimant] is ordered to pay Avrotros' legal costs. The costs on the Avrotros side are currently estimated at:

- court fee € 656.00

- lawyer salary 980.00

Total € 1,636.00
3.13.

The order for subsequent costs claimed by Avrotros can be allowed in the context of these proceedings, insofar as these costs can be estimated at this time. Subsequent costs will therefore be allocated in the manner stated in the decision.
4 The decision

The preliminary relief judge
4.1.

rejects the claims,
4.2.

orders [claimant] to pay the costs of the proceedings, estimated on the part of Avrotros to date at € 1,636.00,
4.3.

orders [plaintiff] to pay the costs incurred after this judgment, estimated at € 157.00 in lawyer's salary, to be increased, on the condition that [plaintiff] has not complied with the judgment within 14 days after registration and the judgment is subsequently served has taken place, with an amount of € 82.00 in attorney's salary and the costs of service of the judgment,
4.4.

declares this judgment provisionally enforceable with regard to the cost order.

This judgment was rendered by mr. FC Burgers and pronounced in public on September 29, 2020.