Rb. Midden-Nederland - NL19.10328

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Rb. Midden-Nederland - NL19.10328
CourtsNL.png
Court: Rb. Midden-Nederland (Netherlands)
Jurisdiction: Netherlands
Relevant Law: Article 4(1) GDPR

Article 4(14) GDPR

Article 6(1)(f) GDPR

Article 17 GDPR

Article 85 GDPR

Article 43(2) GDPR Implementation Act

Article 8 ECHR

Decided: 9. 1. 2020
Published: 9. 1. 2020
Parties:

SPEC ENTERTAINMENT B.V.

National Case Number: NL19.10328
European Case Law Identifier: ECLI:NL:RBMNE:2020:24
Appeal from: n/a
Language: Dutch
Original Source: de Rechtspraak (in NL)

The Court of First Instance of the Central Netherlands ruled that voice fragment is (biometric) personal data but in this case it was used in the context of an artistic form of expression.

English Summary[edit | edit source]

Facts[edit | edit source]

The plaintiff was victim of a robbery in her flower shop. Afterwards, she cooperated with a TV program to talk about the robbery. The reconstruction of the scene was shot with the plaintiff’s fragment of voice. The TV program had been included at a later stage in a theatre show which was aimed to be broadcasted on TV. The plaintiff filled a complaint against the company using her voice in the theatre show. The plaintiff argued inter alia that her voice had been processed without any legal basis, and that the controller violated Article 6 GDPR.

Dispute[edit | edit source]

The Court had to assess whether a person’s fragment of voice constitutes personal data or anonymous data, whether the processing was lawful and whether the fragment of voice could be deleted.

Holding[edit | edit source]

The Court found that anonymous data is data that cannot be traced back to an identified or identifiable person. In the present case, the fragment of voice could lead to the plaintiff’s identification without disproportionate efforts. The Court considered that the information gathered here was so unique that it could only relate to one person.

It further found that voice data constitutes biometric data within the meaning of Article 4(14) GDPR.

Regarding the lawfulness of the processing, the Court considered that the use of the voice in the context of an artistic form of expression falls within the scope of Article 6(1)(f) GDPR.

Also, it stressed that the processing of the personal data for an artistic form of expression does not allow the exercise of the right of erasure under Article 17 GDPR pursuant to Article 85 GDPR and a specific provision in Article 43(2) of the Dutch Data Protection Act that makes Article 17 GDPR inapplicable in cases of artistic expression.

Thus, the Court found that the processing of the personal data was lawful and rejected the complaint.

Comment[edit | edit source]

It seems inconsistent that the Court on the one hand found that voice data constitutes biometric data, but then applied Article 6(1)(f) GDPR instead of Article 9 GDPR.

Further Resources[edit | edit source]

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

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

DECISION

2 The facts
2.1.

[plaintiff] was the victim of an armed robbery at her flower shop in [residence] on 10 January 2011.
2.2.

After the robbery, [plaintiff] cooperated in the television programme "Opsporsporsport-Verzocht" (Investigation Wanted). In the programme a reconstruction of the robbery of [plaintiff] was shown, in which actors were used. The robbery of [plaintiff] was announced in the programme by one of the presenters with the announcement that it concerns a robbery of a flower shop in [place of residence] and that the 35-year-old co-owner herself tells about the robbery, on which [plaintiff] tells as a voice-over what happened to her and gives a description of the robbers. [plaintiff] herself is not in the picture, but both the inside and the outside of the florist's shop is shown. In her description of one of the robbers [plaintiff] says: "The one who talked, eh yes, had a [name] accent". According to [plaintiff] she should have said that from the police and the programme management.
2.3.

The episode of Opspinding Verzocht met de roval op [plaintiff] was broadcast on television on 5 April 2011 and repeated on 6 April 2011. The episode can (still) be seen on the internet.
2.4.

On 6 April 2011, an article appeared in the newspaper Het Parool entitled: "Opsporing Verzocht men noemt [name] accent". In the article the following can be read, among other things:

“(…)

[defendant] is shocked about an item in the AVRO program Detection Requested. In Tuesday's broadcast a robber was described as someone with a '[name] accent'.

[defendant] was informed by one of his followers. The rapper retweeted another message: 'Waauww #Opzoeksverzocht just uses the term ' [name] accent'! Is that new to Marrocano or rapper?'.

(…)

The phone of [defendant] is now red-hot. (…)

That's why he says on Twitter that he is very sorry for the victim in the first place. I wish her a lot of strength. I assume she has good intentions and 'I' don't want to become more important than her story in that hype. If it turns out that you arrest perpetrators of this kind more quickly by using my name, especially continue, I will gladly sacrifice myself for it'. (…)”
2.5.

On 7 April 2011, an article was published on nu.nl with the title: " [defendant] gets an apology from AVRO" with, among other things, the following content:

"AVRO has apologized to [defendant]. The name of the rapper was mentioned on Tuesday in a broadcast of Opsporing Verzocht, after which [defendant] and the broadcaster were called flat. The rapper indicated that he had no problem whatsoever with the mentioning of his name. (…)”
2.6.

In the theatre season 2016/2017, [defendant] will perform in his theatre show entitled: "[theatre show] ". The show includes a sound clip from the program Opspinding Verzocht van de roval op [plaintiff] in 2011. In the sound clip the voice of [plaintiff] can be heard with the description of the robbery and one of the perpetrators with "[name] accent", preceded by the announcement of the presenter of Op opsporing Verzocht, that it concerns a robbery of a flower shop in [residence] and that the 35-year-old co-owner herself tells about the robbery.
2.7.

On 19 May 2017 [defendant] is a guest of the program "College Tour". Presenter Twan Huys says among other things the following to [defendant] :

"I went to your theatre programme last Sunday and there was something in it that made me laugh and laugh a lot, but which connects to what you say about the prejudices against Moroccans. Let's have a look at a small piece from the television programme Opsp sporen Verzocht".

After this, an excerpt from the theatre show [theatre show] will be shown, including the sound fragment of the programme Opsporing Verzocht with the voice of [plaintiff] .
2.8.

On 30 May 2017 [plaintiff] sent an e-mail to the makers of the programme College Tour, NTR, with the following content, among others:

“(…)

Today I was alerted to the fact that you have portrayed my situation regarding my robbery in the program with [name] on May 19...

I understand why you enjoyed this so much ...but remember what that meant and what wounds it left.

(…)”
2.9.

The editor of the program College Tour has answered the e-mail of [plaintiff] as follows on 31 May 2017:

“(…)

We broadcast the excerpt because the statement you made about the robber's '[name] accent' caused a lot of commotion (it addresses prejudices about Moroccans) when it was broadcast. By the way, the fragment can also be heard in the theatre show of [defendant] ' [theatre show]'.

(…)”
2.10.

The theatre show [theatershow] will be broadcast on television after the theatre season, including on 13 January 2018 and on 3 January 2019 on RTL 4.
2.11.

2.11. On 13 January 2018, [the complainant] sent an e-mail to RTL with the subject: 'Serious complaint' and, inter alia, the following content:

“(…)

You have at rtl4 on 13 jan(this evening ). The [name] Tour aired .

In that broadcast are fragments used of the robbery that was committed on me ...

I'm filing an official complaint against this.

I refuse to accept that this will be used without my consent.

(…)

As a result of this incident I am flooded with reactions from friends, strangers and media ...

(…)

I insist there's a sequel to this.

(…)”
2.12.

On 8 March 2018 the legal assistance insurer of [plaintiff] sent a letter to the manager of [defendant] , Mr. [manager] , explaining the robbery of [plaintiff] and its fragment in the Investigation Request programme and the articles published about it in the media. The letter also contained, inter alia, the following:

“(…)

(The management of) [the defendant] also apologized to (among others) the address of the client for the fuss that had arisen.

Remarkable, therefore, is the situation that arose afterwards. In his theatre show "[theatershow] " [defendant] used the aforementioned excerpt from the broadcast of Opspinding Verzocht and thus made fun of it. (…)

As I understand it, there have been about 200 shows and the show has also been broadcasted on RTL 4. (…)

I therefore ask you to contact me so that you and I can find an appropriate solution. I would prefer to have a personal conversation with you.

(…)”
2.13.

On 24 October 2018, [plaintiff's] lawyer informed [defendants et al.] by registered letter of [plaintiff's] position that the use of [plaintiff's] voice fragment from the program Investigation Requested [defendants et al.] infringes [plaintiff's] portrait right and the protection of privacy. Furthermore, claims have been formulated and [plaintiffs] has been summoned to agree to these claims within 14 days, failing which legal proceedings have been announced. defendants] has not agreed to the claims of [plaintiff].
2.14.

On 27 November 2018 the excerpt from Opsporing Verzocht was broadcasted on Radio 2 in the radio program Gijs with the voice of [plaintiff].
3 The dispute
3.1.

[plaintiff] requests the court in summary - enforceable in stock:

Declare that [the defendants c.s.] has acted unlawfully towards [plaintiff] by processing her personal data without a legal basis, as required by article 6 of the GTC and/or by acting contrary to her right to protection of her privacy as referred to in article 8 of the ECHR, and this without a legitimate interest;

Declare that [the defendants c.s.] has infringed the portrait right of [plaintiff] under Article 21 of the Copyright Act (hereinafter: Aw), both in respect of her exploitation rights and her personality rights, and has thus acted unlawfully towards [plaintiff];

Declare that [defendants/c.s.] has acted contrary to article 17 of the AVG, and thereby unlawfully, by refusing to delete the personal data of [plaintiff], as requested by her, and by refusing to do so without a legitimate interest;

Declare that the (immaterial) damage caused from a to c by [defendant c.s.] must be compensated to [plaintiff].

Furthermore, [plaintiff] seeks - in summary - an order that [defendants and co-defendants] be ordered to pay compensation:

to cease and desist from any publication and distribution of [plaintiff's] portrait, the used voice fragment of Investigation Requested or parts thereof (stills), as well as the voice fragment used by [defendants/c.s.] in the registration of the theatre shows and/or the film clip;

to remove and keep removed all text and comments pertaining to the film, such as editorial texts, comments and/or hyperlinks placed by third parties or otherwise, as well as not to place a new text or voice fragment, as referred to above, in any form whatsoever;

remove and keep removed by Google and other search engines from the links to any form of registration of the voice fragment from the theatre show, so that this data can no longer be found via a search engine, with submission of copies of these requests to the counsel of [plaintiff] ;

to remove all copies of the voice fragment, at least the images with the portrait of [plaintiff] , as referred to under d, from data carriers on which they are stored by or on behalf of [defendants c.s.] , in such a way that they cannot be reused, and to keep them removed;

make a written statement to the counsel of [plaintiff] of all parties to whom the voice fragment, or at least the portrait of [plaintiff] , has been transferred, handed over, given in use or in any other way offered for use or exploitation;

payment of a penalty of € 10,000 per day or per time that [defendant c.s.] fails to comply with one of these sentences;

payment of € 25,000 to [plaintiff] by way of compensation for (immaterial) damage;

payment of [plaintiff's] out-of-court costs;

payment of the (full) legal costs, in application of article 1019h of the Code of Civil Procedure (Rv).
3.2.

The claim of [plaintiff] is based on this:
- [the defendants c.s.] infringed its portrait right under section 21 of the Aw;
- the defendants c.s.] violated its right to privacy under articles 6 and 17 of the AVG;
- [the defendants et al.] violated her privacy under Article 8 ECHR;
- [defendants c.s.] acted wrongfully towards her.

3.3.

The defendants claim that the Court should reject the claim and order [the plaintiff] to pay the costs of the proceedings pursuant to Article 1019h of the Code of Civil Procedure, together with interest at the statutory rate.
3.4.

The arguments of the parties are discussed in more detail below, in so far as they are relevant.
4 The assessment
The claims based on the portrait right
4.1.

With regard to [plaintiff's] appeal to the portrait right as referred to in Article 21 of the Aw, the following applies. The portrait right refers to an image of (part of) the face of a person, in such a way that the person portrayed can be recognised, whether or not by the combination with other factors. The voice is not an image of the face. Even if [the plaintiff] is followed in the circumstance stated by her (and in the opinion of the District Court highly unlikely) that she was recognized by a third party on the basis of her voice (when ordering a sandwich on a boat in Egypt in April 2018), this still means that the voice recording does not fall within the scope of the portrait right within the meaning of section 21 Aw. Therefore, [plaintiff] cannot invoke the portrait right. For this reason, [plaintiff] cannot also invoke the alleged violation of the exploitation rights of her portrait and the violation of her personality rights on the basis of an adaptation of her portrait.

The claims based on the GDPR
4.2.

A person's voice (like, for example, the fingerprint or the shape of the iris) is personal biometric data. This data can be used for unambiguous identification of a person. According to the AVG, this is the processing of special personal data.
4.3.

The AVG does not apply to anonymous data. Anonymous data cannot be traced back to an identified or identifiable natural person. According to [the defendants et al.] this is the case now that only an anonymous voice is heard in the show and [the plaintiff] cannot be identified on the basis of this audio fragment.
4.4.

A person is identifiable within the meaning of the AVG if the identity of the person has not yet been established but this can reasonably be done without disproportionate effort. The District Court is of the opinion that this is the case in this case and considers the following.
4.5.

At the hearing, [plaintiff] gave reasons - and was insufficiently refuted by [defendants et al.] - that by searching on the Internet for elements from what is performed and told in the show (requesting the name of the program Opsporspinding (Investigation), the sound clip itself in which it is stated that it concerns a cowardly robbery of a flower shop in [place of residence] on Monday 10 January and the performance of the undistorted female voice of [plaintiff]) the identity of [plaintiff] can be reasonably easily traced. In these proceedings it must therefore be assumed that the information available in this way is so unique because of its combination that it can only relate to one person, namely [plaintiff].
4.6.

The foregoing does not mean, however, that the processing of [plaintiff's] voice fragment is therefore not lawful vis-à-vis [plaintiff]. The use of the voice fragment in [defendant's] theatrical programme is in fact a processing for the sole purpose of an exclusively artistic form of expression. This processing, also in view of Section 85 of the AVG, Section 43 of the AVG Implementation Act and Section 7 of the Constitution, and what is considered below under 4.8 et seq., falls under a lawful processing on the grounds of the provisions of Section 6(1)(f) of the GDPR. The circumstance that [the defendant] as a theatre-maker, as argued by [the plaintiff], could have used a different voice does not make this any different. The choice to use the original sound fragment falls under the freedom of artistic expression. Moreover, [defendant c.s.] offered in court to have [plaintiff's] voice replaced by another female voice, but [plaintiff], without [defendant c.s.] also paying damages, did not want to accept this offer.
4.7.

The fact that there is an artistic form of expression means that [plaintiff] does not have the right to invoke art. 17 AVG (right to oblivion). In contrast to Art. 6 GDPR, this article has been declared inapplicable to the processing of personal data for the purpose of artistic forms of expression on the basis of Art. 85 GDPR in conjunction with Art. 43 paragraph 2 opening words and under b. GDPR Implementation Act.

The claims based on violation of privacy under Article 8 ECHR
4.8.

With regard to the claim based on Article 8 ECHR, the protection of [plaintiff's] privacy is counterbalanced by [defendant's] right to freedom of expression. This is therefore a clash of fundamental rights.
4.9.

The answer to the question which of these two rights takes precedence in the concrete case must be found by weighing up all the relevant circumstances of the case. This assessment is not based on the premise that the right guaranteed by Article 10 of the IPW and Article 8 of the ECHR takes precedence. The same applies to the rights protected by Article 7 of the Aliens Act and Article 10 of the ECHR. This means that this is not a two-stage assessment (i.e. it must first be determined in the light of the circumstances which of the two rights takes precedence, after which it must be assessed whether the necessity test laid down in Article 8(2) and Article 10(2) of the ECHR respectively is inconsistent with the outcome of that assessment), but that this review must be carried out in one go, whereby the opinion that one of the two rights outweighs the other right, given all the relevant circumstances, means that the infringement of the other right satisfies the necessity test of the relevant paragraph 2 (see HR 18 January 2008, ECLI):NL:HR:2008:BB3210 [name] ; HR 5 October 2012, ECLI:NL:HR:2012:BW9230, Endemol and SBS/A). Which of the two mutual interests mentioned will weigh more heavily in the concrete case depends, as mentioned above, on the concrete circumstances of the case.
4.10.

The voice fragment used by [plaintiff] comes from a program to which [plaintiff] herself has cooperated and has therefore given permission for disclosure of her voice fragment. Furthermore, it should be noted that [plaintiff] mentions the (stage) name of [defendant] in a programme of which it is generally known that perpetrators of criminal offences are being sought, and that in doing so she has brought him negative publicity, despite the fact that the court is of the opinion that this was not the intention of [plaintiff]. [defendant] has the right to express his feelings about this and to respond to it. He has done this by using an excerpt from the program Opspinding Verzocht with, among other things, the voice of [plaintiff] . This fragment has been incorporated by [defendant] in an artistic way in his theatre program ' [theatre show] '. Contrary to what [plaintiff] has argued, the District Court is of the opinion that he has not dismissed [plaintiff] as someone who discriminates.
4.11.

4.11. [plaintiff] states that as a result of the (re)broadcasting of the theatre show (13 January 2018 and 3 January 2019) and the broadcast of College Tour on 19 May 2017, she unintentionally became a public figure and always gets 'an avalanche of reactions' from family, friends, customers and strangers. Also, the media would seek contact with her again and again when the fragment is broadcast on television or radio (e.g. on 27 November 2018 in the radio programme Gijs).
4.12.

The District Court agrees with [defendants et al.] that the consequences claimed by [plaintiff] of the repetition of the fragment are not plausible. Thus, without further substantiation, which was also not provided upon request, it is absolutely not plausible that [plaintiff] was recognized by a third party on the basis of her voice during a holiday in Egypt in April 2018. Nor is it plausible, as has been stated, that after every (repeated) broadcast of the fragment on radio or television, reporters repeatedly go to her children's schoolyard to try to conduct an interview with [plaintiff]. That [plaintiff] has become a public figure is therefore not plausible.
4.13.

On the other hand, it is plausible that it is annoying and painful for [plaintiff] when she is directly or indirectly confronted with a repetition of the conscious part of [defendant's] show. This reminds her of the armed robbery in 2011 and, as she herself states - with the (then) controversial remark about [defendant] ('the one who talked, eh yes, had a [name] accent'). However, her statements on this point are contradictory. At the hearing [plaintiff] also stated that if [defendant] had had the text from the program Opzoeks Verzocht by another woman's voice spoken by her in his theatre show, she would have had little or no objection to the item in question in [defendant's] theatre show. Because [plaintiff] is also then confronted with the situation of the robbery and the text she pronounced, the reproach is apparently limited to the use of [plaintiff's] own voice.
4.14.

The fact that the fragment is available on the internet via the program Opspinding Verzocht so far and [plaintiff] has no objection to this, weighs up interests in favour of [defendants/c.s.].
4.15.

In view of the above, the circumstances on the part of [plaintiff] are of insufficient weight to limit or deprive [defendants and others] of their right to freedom of expression, as guaranteed by Article 10 ECHR.

The claims based on tort
4.16.

The claims of [plaintiff] based on alleged wrongful acts of [defendants c.s.] are based on the same facts and circumstances already discussed above and have not led to the granting of any claim of [plaintiff]. In the opinion of the court, there is no room in this case for an additional protection of [plaintiff] on the grounds of alleged wrongful acts by [defendants et al. This means that claims based on wrongful acts by [defendants or co-defendants] do not qualify for adjudication either.

Conclusion
4.17.

The conclusion of all the above is that the exposures are not eligible for allocation.
4.18.

The difference claimed by [Respondent] and Spec Entertainment (i.e. that Spec Entertainment is the producer of [Respondent's] theatrical programme and as such has disclosed this programme with the fragment in question and thus the voice of [Plaintiff] and that [Respondent] has not disclosed the item and/or the voice of [Plaintiff]) can be disregarded.

Legal costs
4.19.

[plaintiff] shall be ordered to pay the costs of the proceedings as the unsuccessful party.
4.20.

The parties have partly estimated the costs of the proceedings on the basis of Article 1019h of the Code of Civil Procedure. According to [plaintiff] there is a claim based for 1/3 part on copyright. Defendants c.s.] states that half of the claim is based on the portrait right and the exploitation right. According to the parties, for these parts the costs of the proceedings should be estimated on the basis of art. 1019h of the Code of Civil Procedure. The District Court does not follow the parties in their point of view and considers the following.
4.21.

The reliance on the portrait right (and therefore the exploitation right) in this case does not lead to an order to pay costs based on Section 1019h of the Dutch Code of Civil Procedure. Portrait rights do not fall within the scope of Section 1019h of the Judiciary (Organisation) Act. After all, it is not an intellectual property right within the meaning of Section 1019h of the Dutch Code of Civil Procedure. The costs of the proceedings will therefore be estimated according to the liquidation rate.
4.22.

The costs on the part of [the defendants c.s.] will be estimated at:

- court registry fee 1.992,00

- lawyer's salary 1,390.00 (2.0 points × rate € 695.00)

Total € 3,382.00
5 The decision

The court
5.1.

rejects the claims,
5.2.

orders [plaintiff] to pay the costs of the proceedings, assessed on the part of [defendants or co-defendants] to date at € 3,382.00, to be increased by the statutory interest as referred to in article 6:119 of the Dutch Civil Code on this amount with effect from the fifteenth day after service of this judgment until the day of full payment,
5.3.

condemns [plaintiff] to pay the costs incurred after this judgment, estimated at € 157.00 in salary as a lawyer, to be increased, on the condition that [plaintiff] has not paid the judgment within 14 days after notification of the judgment and that the judgment has subsequently been served, with an amount of € 82.00 in salary as a lawyer and the exploitation costs of service of the judgment, and to be increased by the statutory interest as referred to in Section 6:119 of the Dutch Civil Code on the after costs with effect from fourteen days after service of this judgment until payment,
5.4.

declares this judgment provisionally enforceable as far as the award of costs is concerned.

This judgment was rendered by Mr J.A. Schuman and pronounced publicly on 9 January 2020.