Rb. Noord-Nederland - C/ 18/189406/HA ZA 19-6
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| Rb. Noord-Nederland - C/ 18/189406/HA ZA 19-6 | |
|---|---|
 | |
| Court: | Rb. Noord-Nederland (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 5(1)(f) GDPR Article 6 GDPR Article 32(2) GDPR |
| Decided: | 15.01.2020 |
| Published: | 23.01.2020 |
| Parties: | NDC MEDIA GROUP E.G Anonymous |
| National Case Number/Name: | C/ 18/189406/HA ZA 19-6 |
| European Case Law Identifier: | ECLI:NL:RBNNE:2020:247 |
| Appeal from: | |
| Appeal to: | |
| Original Language(s): | Dutch |
| Original Source: | (in Dutch) |
| Initial Contributor: | n/a |
The District Court of the Northern Netherlands ruled that the disclosure of personal data through a Facebook message constituted a loss of control of personal data and a breach of Article 5(1)(f) GDPR, Article 6 GDPR and Article 32(2) GDPR.
English Summary
Facts
The first complainant is a company that is engaged, inter alia, in the purchase and sale, rental and leasing of real estate. The second plaintiff is the sole shareholder of the first complainant. The defendant is a journalist working for the group NDC MEDIA GROUP E.G, a newspaper publisher.
The plaintiffs submitted a civil action before the District Court of the Northern Netherlands against NDC MEDIA GROUP E.G regarding an online press article concerning their company. This article has been published also via the Facebook's page of the journalist who wrote the article.
In support of the newspaper publisher, the journalist counterclaimed that the first plaintiff processed his personal data and disclosed them to a third-party, without his consent. Indeed, the first plaintiff disclosed through a Facebook message the data subject municipality’s Personal Record databased (BRP) extract to a third party for the purpose of initiated the proceedings against the publisher.
Dispute
The Court had to pronounce itself mainly on the lawwfulness of disclosure of personal data through social network.
Holding
The Court went through the balancing test to assess whether the conditions laid down in Article 10(2) of the ECHR for a restriction of the right to freedom of expression have been met. The Court recalled that the right for freedom of expression can only be restricted if this is provided for by law and is necessary in a democratic society. For example, a restriction provided by law exists if the court comes to the opinion that the publications, are unlawful within the meaning of Section 6:162 of the Civil Code - this article is the general basis for claims for damages that arise from torts. The District Court found that there has been a violation of a fundamental right which, by its nature and in view of its seriousness, leads to a claim for damages.
Regarding the violation of the GDPR, the Court found that the first plaintiff - the data controller - has an independent obligation to process personal date with an appropriate level of security. In the case at hand, the first plaintiff should not have obtained the personal data of the journalist without his consent and should not have disclose to a third-party for the sole purpose of initiating the proceedings. Thus, the first plaintiff violated Articles 5(1)(f), 6 and 32(2) GDPR. In addition, the Court ruled that the first plaintiff had to give a compensation of € 250.00 for fear and stress. Although the Court declared it was not clear what the negative consequence resulting from the disclosure have consisted of, the concept of damages had to be interpreted broadly.
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English Machine Translation of the Decision
The decision below is a machine translation of the original. Please refer to the Dutch original for more details.
COURT OF NORTHERN NETHERLANDS
Private law department
Location Groningen
Case number / reel number: C/18/189406 / HA ZA 19-6
Judgment of 15 January 2020
in the matter of
1. the private limited liability company
[plaintiff 1] ,
based in Groningen,
plaintiff in counterclaim, defendant in counterclaim,
attorney Mr. J. F. Koenders, based in Groningen,
2. [plaintiff 2]
living at [residence] ,
plaintiff in convention,
attorney Mr. J. F. Koenders, based in Groningen,
by
1. the private limited liability company
NDC MEDIA GROUP E.G,
based in Leeuwarden,
defendant in convention,
attorney Mr. J.J. Gevers at Assen,
2. [defendant 2],
living at [residence] ,
accused in counterclaim, plaintiff in counterclaim,
attorney Mr. J.J. Gevers at Assen.
The parties will hereinafter be referred to as [plaintiff 1] , [plaintiff 2] , NDC Mediagroep and [defendant 2].
The procedure
1.1.
The course of the procedure is evidenced by
-
the indictment of December 11, 2018;
-
the deed of submission of productions of 9 January 2019;
-
the conclusion of response in convention also requirement in counterclaim of 20 February 2019;
-
the conclusion of reply in counterclaim also conclusion of reply in counterclaim of
1 May 2019;
-
the conclusion of the rejoinder also the conclusion of the counter-rejoinder of
June 26, 2019;
-
the conclusion of rejoinder in counterclaim of 7 August 2019.
1.2.
Finally, a judgment has been rendered.
2 The facts in counterclaim and counterclaim
2.1.
The court shall assess the dispute on the basis of the following facts which are established, because those facts have been established on the one hand and have not been contradicted or have not been sufficiently contradicted on the other hand.
2.2.
Plaintiff 1] is a company that is engaged, inter alia, in the purchase and sale, rental and leasing of real estate. Claimant 2] is the sole shareholder of [Claimant 1]. The sole director of [plaintiff 1] is Mr [name A] (hereinafter [name A]).
2.3.
NDC Mediagroep is a newspaper publisher, including the newspaper 'Dagblad van het Noorden', and also operates the Groningen city blog Sikkom.nl ('Sikkom'). defendant 2] is a journalist and works for Sikkom.
2.4.
On 7 November 2018 an article was posted on the Sikkom website about [plaintiff 1] and [plaintiff 2] , entitled "Tenants of [plaintiff 2] have to walk kilometres for expensive and full parking spaces". The article was written by [defendant 2] and has the following content:
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
2.5.
Previous article is also posted on the Facebook page of Sikkom. In addition, [defendant 2] shared on his personal Facebook page a publication with the headline "Tenants of [plaintiff 2] have to walk kilometers for an expensive and full parking spot", with the text "The umpteenth scandal in the Groningen rental sector", after which there is a reference to the mentioned publication on the Sikkom website.
2.6.
On the website of the Dagblad van het Noorden an article was published on 7 November 2018 about [plaintiff 1] and [plaintiff 2] with the title "Kilometers walking for parking space at rented accommodation". The article was written by [defendant 2] and has the following content:
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
2.7.
The previous article was also published in the paper version of the Dagblad van het Noorden on 8 November 2018.
2.8.
On or about November 8, 2018 [defendant 2] published a message on his personal Facebook page in which a video was posted with the text "Stadhuis koketteert met [plaintiff 1] , terwijl het bedrijf misleidt, oplicht, intimidatie en bedreiging" (City Hall is coquetting with [plaintiff 1] , terwijl het bedrijf mislekt, oplicht, intimidatie en bedreiging).
2.9.
Between [plaintiff 1] in the person of [name A] and NDC Media Group in the person of [defendant 2] prior to the publications of November 7 and 8, 2018, as of November 7 and 8, 2018.
e-mail corresponded. On 31 October 2018, [name A] sent an e-mail to
NDC Media Group, which states, in so far as relevant here:
I understand from my employees that you would like to contact me. By means of this e-mail I let you know that I have no need to speak to you orally. If you have any questions for me, please let me know by e-mail. I would also like to let you know that you do not need to approach my employees at the office. And in view of my busy schedule and the many appointments, you do not have to come to my office in person either.
2.10.
On the above-mentioned e-mail [defendant 2] has reacted by e-mail of November 1, 2018. In that e-mail it says, as far as relevant here:
I have a number of questions about the couple rental with houses and parking spaces. I have spoken to several tenants and agencies. I have reviewed contracts and statements. For example, I also heard audio fragments in which [plaintiff 2] himself confirms a number of things. I put all that information in the article below. This piece appears on Sikkom and in Dagblad van het Noorden. We would like to receive your reaction to our findings in the near future.
Here follows the draft article.
2.11.
By return e-mail, [name A] responds, as far as relevant here, as follows:
I received your e-mail in good order, because of my many meetings today, I will send you a substantive (counter)response to the findings below tomorrow. Nevertheless, I would like to point out that findings are mixed up and that you have been misinformed.
2.12.
By e-mail of November 2, 2018 (11:58 a.m.) [defendant 2] then asks:
Can you give me some indication of what time you will send a response? Then I can take this into account in the planning. If you would like to do so before 4:00 p.m. this afternoon, you can include it in tomorrow's newspaper.
2.13.
[name A] reply by e-mail dated November 2, 2018, stating:
Further to my email of yesterday afternoon, I will inform you as follows. After reading your article, I would like to presuppose that you have apparently been misinformed and that you are shouting at random. That is shocking. It is even shocking to read that you are able to put all kinds of untruths on paper and thus think you can mislead the public. Apparently, you're only interested in sensational journalism and we're not working on that.
I am very disappointed with your organization, the Dagblad van het Noorden and
NDC media group, that you act this way. If you are of the opinion that you think you can unfairly put us in a bad light in this way, then you must seriously consider that all damage caused by this will be recovered from you. Do you want to take good note of this?
Claimant 1 and its employees have nothing to do with what you cite in your article. Incidentally, you could have noted this if you had conducted the correct investigation. For the rest, I am abstaining from any comment and we dispute the content of your article. That content is absolutely contrary to reality!
2.14.
On November 4, 2018 [defendant 2] sent an e-mail to [name A], in which, as far as relevant here, is written:
Would you please respond to the last e-mail? Especially if you find that it contains untruths, it is important to say this right. That's why I'm doing my very best to counter it.
At the same time I have spoken to many tenants who confirm this lecture. There are even recordings made in which [plaintiff 2] indicates that it is not the intention to use the parking space on day one. So I am very curious about what is not right. Even if it does become a case, which you suggest, it is advisable to answer the questions. (…).
2.15.
[name A] responded as follows by e-mail of 5 November 2018:
I gave you a clear response in my email of 2 November. Also in your email of yesterday afternoon you keep coming up with untruths. If you had done thorough research, you could come to the conclusion that [plaintiff 1] does not rent living spaces with a parking space. You could also have established that Mr. [plaintiff 2] is not employed by us, and therefore cannot speak on our behalf. If you have questions about or for Mr. [plaintiff 2], you do not have to be with us.
Furthermore, we have decided not to respond any more and we maintain all that was mentioned in our message of November 2nd last. Further requests/releases will therefore not be responded to.
As mentioned earlier, [plaintiff 1] and its employees have nothing to do with what you mention in the article.
2.16.
Subsequently, [defendant 2] has answered by e-mail of November 6, 2018 (11:35 a.m.) as follows:
I really don't understand anything about your reaction. We have seen contracts, read statements to the Rent Commission and talked to tenants. All of this shows that [plaintiff 1] is saddling tenants with parking spaces that are of no use to them, and you deny that now?
Then I know enough. I've done my very best to argue the case. Then the article goes to the paper and online.
2.17.
And later that day by 4:45 p.m. e-mail:
I'd still like to speak with you or Mr. [plaintiff 2]. Documentation and testimonies show conclusively that you link parking spaces to the rental of houses. Contrary to what you state in the e-mails.
Therefore a last attempt to get in touch with you or the shareholder. With your denial against the evidence, the story only becomes more remarkable.
2.18.
On behalf of [plaintiff 1], NDC Mediagroep was requested by letter of 8 November 2018, addressed to [defendant 2] , to immediately stop causing riots. Furthermore, in the aforementioned letter, NDC Mediagroep and [defendant 2] have been held liable for the damages incurred.
2.19.
On 27 November 2018 an article was posted on Sikkom about [plaintiff 1] and [plaintiff 2] with the title " [plaintiff 1] sues us, but withdraws at last minute". The article was written by [defendant 2] and has the following content:
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
[article quoted]
2.20.
Previous article is also posted on the Facebook page of Sikkom.
2.21.
Between [name A] and NDC Mediagroep, prior to the publication of
27 November 2018 corresponded by e-mail. On November 27, 2018 (11:59 a.m.), [defendant 2] sent an e-mail to [plaintiff 1] (addressed to [name A] ), stating, as far as relevant here:
Yesterday I received the unfortunate news that you withdrew the interlocutory proceedings. (...) I myself can guess why the case did not proceed. All I have to do is take a look at the contracts and statements of the tenants. Or listen to one of the audio fragments.
But still, because of a follow-up article, I am very curious as to why you withdrew the case. Also because you accuse me of not sufficiently verifying the cases.
(…).
2.22.
By e-mail dated 27 November 2018 (13:27), [plaintiff 1] (in the person of [name A]) responded as follows, in so far as relevant:
When you send me the audio fragments, we will give you a response. I also inform you that we have not stopped the legal proceedings against you and the NDC media group. We will continue the entire case in proceedings on the merits and we will also bring a case before the journalism council.
(…).
2.23.
By e-mail of 27 November 2018 (13:35 hours), NDC Mediagroep (in the person of [defendant 2]), insofar as relevant here, will respond:
I am not sending you the fragments for source protection reasons. However, I would like to send you a transcript. The question remains, and that has nothing to do with the sound fragments, why are you withdrawing the summary proceedings two days before the hearing? (…).
2.24.
By e-mail dated 27 November 2018 (13:43) [plaintiff 1] (in the person of [name A] responds:
When you send me a transcript of all sound fragments in your possession, we will respond.
2.25.
By e-mail of November 27, 2018 (13:45 hrs.) NDC Mediagroep (in the person of [defendant 2]) responds:
I do not want a response to the audio fragments, I would like to know why you withdrew the interlocutory proceedings. That is completely separate from the fragments.
2.26.
By e-mail of November 27, 2018 (14:33 hours) [plaintiff 1] (in the person of [name A] ) responds to this:
As I have previously informed you, we have converted the application for interim measures into proceedings on the merits, that is the reason.
You would like to hear both sides of the argument, but this way it will be difficult if you don't let us hear or read audio fragments.
I expect from you by return the promised transcripts of the audio fragments.
2.27.
By e-mail of November 27, 2018 (14:56 hrs.) NDC Mediagroep (in the person of [defendant 2] ), replies:
I only wanted to know why the summary proceedings were withdrawn. But the reason is because it has been converted into proceedings on the merits. And with those proceedings in mind, I will of course not hand you our evidence.
2.28.
[name A] has sent a message via Facebook to a third party whereby personal data of [defendant 2] , without his permission, have been provided to that third party.
3 The dispute in convention and counterclaim
3.1.
Plaintiff 1] and [Plaintiff 2] claim by convention:
1. Order the defendants jointly and severally to produce the following publications within
24 hours after the verdict to be given on the websites of the Dagblad van het Noorden and Sikkom.nl and on the Facebook pages of Sikkom.nl and Mr. [defendant 2] , including all reactions to these publications, to be removed and kept removed:
- The publication on the Sikkom.nl website with the headline 'Tenants of [plaintiff 2] must walk kilometres for expensive and full parking space';
- The publication on the website of the Dagblad van het Noorden with the headline 'Miles walking for parking space in rental properties';
- The publication on the Facebook page of Sikkom.nl with the headline 'Tenants of [plaintiff 2] must walk kilometres for expensive and full parking space';
- The publication on the personal Facebook page of Mr. [defendant 2] with the text 'The umpteenth scandal in the rental sector in Groningen', after which there is a reference to the mentioned publication on Sikkom.nl;
- The publication on the personal Facebook page of Mr. [defendant 2] , meaning that the text and a video on which at the end a message can be read with the text 'Stadhuis koketteert met [plaintiff 1] , terwijl het bedrijf misleidt, oplicht, intimidatie en bedreigt' (City Hall is coquetting with [plaintiff 1] , while the company misleads, scams, intimidates and threatens);
- The publication on the website Sikkom.nl with the headline ' [plaintiff 1] sues us, but withdraws at the last moment';
- The publication on the Facebook page of Sikkom.nl with the headline ' [plaintiff 1] sues us in court, but withdraws at the last minute'; The publication on the Facebook page of Sikkom.nl with the headline ' [plaintiff 1] sues us in court, but withdraws at the last minute'.
2. Order the defendants jointly and severally, within 24 hours after the judgment to be rendered, to add to the text of the Sikkom.nl website on the home page, in a striking banner or box at the top, and to keep it there for fourteen days, without further comment, in the same font and font size as the headings of the website, but in bold and with the word 'rectification' in red:
'RECTIFICATION
On this website, [plaintiff 1] , also acting under the name [plaintiff 1] , and Mr. [plaintiff 2] were wrongly associated with scamming, misleading, blackmailing, intimidating and threatening. In addition, there are a number of quotations from Mr. [plaintiff 2] which he is alleged to have made concerning rent and rent allowance. The District Court of Noord-Nederland, Groningen location, has now ruled that the accusations made are unlawful and that the quotations made by Mr. [plaintiff 2] are incorrect. The District Court of Noord-Nederland, location Groningen, has ordered the accusations to be removed and this rectification to be made'.
3. With regard to the Facebook page of Sikkom.With respect to the Facebook page of Mr. [defendant 2], within 24 hours after the judgment to be rendered, to order the defendants jointly and severally, and with respect to the Facebook page of Mr. [defendant 2], to place or have placed, within 24 hours after the judgment to be rendered, on the Facebook page in question, in a striking banner or striking frame at the top, and to keep it there for fourteen days, without further comment, in the same font and font size as the previously placed publication(s) to be rectified, but in bold and with the word 'rectification' in red, the same text as mentioned under two, replacing the word 'website' with 'Facebook page';
4. Order the defendants jointly and severally, within 24 hours after the judgment to be rendered, to add to the text of the website of the Dagblad van het Noorden on the home page, in a striking banner or box at the top, and to keep it there for a fortnight, without further comment, in the same font and font size as the headings of the website, but in bold and with the word 'rectification' in red:
'RECTIFICATION
On this website, [plaintiff 1] , also acting under the name [plaintiff 1] , and Mr. [plaintiff 2] were wrongly associated with scamming, misleading, blackmailing, intimidating and threatening. In addition, there are a number of quotations from Mr. [plaintiff 2] which he is alleged to have made concerning rent and rent allowance. The District Court of Noord-Nederland, Groningen location, has now ruled that the accusations made are unlawful and that the quotations made by Mr. [plaintiff 2] are incorrect. The District Court of Noord-Nederland, location Groningen, has ordered the accusations to be removed and this rectification to be made'.
5. To order the defendants jointly and severally, within 24 hours after the judgment to be rendered, to place in the paper version of the Dagblad van het Noorden on the same page as the previously placed page to be rectified, in the same font and font size as the earlier publication, but in bold, without adding any further comment, the same text as mentioned under four, replacing 'On this website' by 'In the edition of 8 November 2018';
6. Order the defendants to submit a request (or have a request submitted) to Internet search engine Google, within 24 hours after the judgment to be rendered, to remove (or have removed) the publication mentioned under 1. and all references to it from the search results of these search engines as well as from their 'cache memory', simultaneously sending a copy of the requests concerned to the plaintiffs' lawyer;
7. Prohibiting defendants, jointly and individually, from making negative statements about plaintiffs in any way and through any medium;
8. To determine that defendants jointly and severally forfeit penalty payments of
€ 1.000,--, or at least an amount to be determined in good court, per day for each day, including part of a day, that they fail to comply with one or more of the aforementioned convictions and/or orders, or fail to comply in full and/or in time, per violation;
9. Declare that the defendants have acted unlawfully;
10. To order the defendants jointly and severally to pay damages, to make payments to the state and to settle according to the law;
11. Order the defendants jointly and severally to pay an advance amount in connection with the damage suffered by the plaintiffs, in the amount of € 2,500;
12. Order the defendants jointly and severally to pay the costs of the proceedings.
3.2.
To this end, [plaintiff 1] and [plaintiff 2] state, in summary, that the publications contain erroneous accusations and do not find sufficient support in the available factual material. According to [plaintiff 1] and [plaintiff 2], defendants should therefore not have published the publications. Moreover, according to [plaintiff 1] and [plaintiff 2], the publications wrongly establish a link between [plaintiff 1] and [plaintiff 2] and deceive, blackmail, intimidate and threaten. The publications are therefore unlawful and must be rectified, according to [plaintiff 1] and [plaintiff 2]. In addition, [plaintiff 1] and [plaintiff 2] state that no, or at least insufficient, inter partes hearing has taken place and that more care could be expected.
Plaintiff 1] and [Plaintiff 2] further state that their honor, good name, credibility, integrity and reputations have been harmed. Pursuant to Article 6:106 of the Dutch Civil Code (BW) they are entitled to compensation, according to [plaintiff 1] and [plaintiff 2].
3.3.
NDC Mediagroep and [defendant 2] put forward a defence and conclude that
declare [Claimant 1] and [Claimant 2] inadmissible in their claims or deny them the claims, and order [Claimant 1] and [Claimant 2] to pay the costs of the proceedings. To this end they argue, in summary, that [defendant 2] has never acted in its own title. It is always Sikkom who has made the statements, [defendant 2] is not a party to these proceedings, according to NDC Mediagroep and [defendant 2]. According to NDC Mediagroep and [defendant 2] the claims against [defendant 2] must therefore be rejected. Furthermore, NDC Mediagroep and [defendant 2] argue that the subjects and positions taken in the publications are supported by the available factual material, so that there is no reason to rectify and/or compensate. Moreover, NDC Mediagroep and [defendant 2] contest the fact that damages have been suffered. In addition
NDC Mediagroep and [defendant 2] argue that in this case the freedom of expression under Article 10 of the European Convention on Human Rights (ECHR) should prevail over Article 6:162 of the Dutch Civil Code.
3.4.
defendant 2] claims in counterclaim:
1. Declare that [plaintiff 2] has acted in violation of article 6 of the AVG towards Mr. [defendant 2] and has thereby acted unlawfully;
2. Order plaintiff 2] to provide Mr. [defendant 2] with a complete list of names and addresses of persons or parties to whom [plaintiff 2] has provided the extract from the BRP of Mr. [defendant 2] within 2 weeks after service of an order to that effect on Mr. [defendant 2];
3. prohibit plaintiff 2] from disclosing the personal data of Mr. [defendant 2] to third parties;
4. Order plaintiff 2] to compensate the damage suffered by Mr. [defendant 2] for the amount of € 750,- based on article 6:162 of the Dutch Civil Code;
5. Declare that plaintiffs shall jointly and severally forfeit a penalty payment of
€ 500.00 per day and for each day that plaintiffs fail to comply with the prohibition claimed under 2 or act in violation of the prohibition claimed under 3, all this with an order that [plaintiff 1] and [plaintiff 2] pay the costs of the proceedings.
3.5.
To this end, [defendant 2], in summary, states that [name A], in his capacity as director of [plaintiff 1] , has provided the address details of [defendant 2] to third parties without his consent. Plaintiff 1] has thereby acted in violation of Article 6 of the General Data Protection Regulation (AVG) and that constitutes a wrongful act as a result of which [defendant 2] has suffered damages, according to [defendant 2].
3.6.
Plaintiff 1] puts forward a defence and concludes that NDC Mediagroep and [defendant 2] are declared inadmissible, or at least that the claims are rejected, all this with an order to NDC Mediagroep and [defendant 2] to pay the costs of the proceedings. Plaintiff 1] claims, in summary, that [name A] acted in its own name and not in the capacity of director of [Plaintiff 1]. Furthermore, plaintiff 1 contests that [defendant 2] has suffered damages.
4 The assessment
Jurisdiction in convention and counterclaim
4.1.
Prior to the substantive assessment, the court finds that this case has an international character because [plaintiff 2] is domiciled in [domicile]. Therefore, first of all the question has to be answered whether the Dutch court has jurisdiction to hear [plaintiff 2]'s claim.
4.2.
Article 6, opening words and under e of the Dutch Code of Civil Procedure (Rv) provides that the Dutch court has jurisdiction in cases concerning obligations in tort, if the harmful event has occurred or may occur in the Netherlands. The court is of the opinion that the place of the alleged harmful event occurred in the Netherlands. This is because the articles in question (in convention) have been published on Dutch websites, Facebook pages of a Dutch company/resident and have been written in a Dutch newspaper and in the Dutch language, and the personal data of [defendant 2] provided (in convention) are based on Dutch address data that - as the Court understands it - have been provided to a third party residing in the Netherlands. The District Court is therefore of the opinion that it has jurisdiction to adjudicate on the present claims. Pursuant to Section 99 of the Dutch Code of Criminal Procedure, the District Court of Noord-Nederland, location Groningen, has jurisdiction to adjudicate the case. Incidentally, the jurisdiction of the District Court is not in dispute between the parties.
in convention
4.3.
This case is essentially about the unlawfulness of (press) publications and their rectification.
Assessment framework
4.4.
In view of the reciprocal positions adopted by the parties, it must be examined in this case whether the conditions for tort, as laid down in Article 6:162 of the Civil Code, and whether the conditions laid down in Article 10(2) of the ECHR for a restriction of the right to freedom of expression have been met.
4.5.
Granting the claims in convention would be a restriction of the fundamental right of freedom of expression and freedom of the press of NDC Mediagroep and [defendant 2] as laid down in Article 10 (1) ECHR. Under Article 10 ECHR they should have a wide freedom to publish messages, even if the messages concerned are not to everyone's liking. The right to freedom of expression can only be restricted if this is provided for by law and is necessary in a democratic society, for example to protect the good name and the rights of others (Article 10(2) ECHR). A restriction provided by law exists if the court comes to the opinion that the publications, of which [plaintiff 1] and [plaintiff 2] claim this, are unlawful within the meaning of Section 6:162 of the Civil Code. In that case
NDC Mediagroep and [defendant 2] (also) pursuant to Section 6:167 of the Dutch Civil Code, whether or not under penalty of a fine, are (among other things) ordered to make a rectification.
4.6.
The interests of [plaintiff 1] and [plaintiff 2] are in particular that they are not lightly exposed to imputations, that their privacy is not unnecessarily violated and that their honor and good name should not be unnecessarily damaged. The interests of NDC Mediagroep and [defendant 2] lie in particular in the fact that, as publisher and employee of Sikkom, they must be able to make critical, informative, opinion-forming and warning statements in public about abuses that affect society - and more specifically the inhabitants of the city of Groningen.
4.7.
Which of these interests weighs the most heavily depends on the circumstances of the case considered together, including the nature of the published suspicions and the seriousness of the expected consequences for the person to whom the suspicions relate, the seriousness - from the point of view of the public interest - of the misconduct which the publication is intended to expose, the formation and framing of the suspicions, viewed in relation to the circumstances referred to above, the authority enjoyed by the medium and the social position of the person concerned. Finally, an important test is the extent to which the suspicions found support in the factual material available at the time of publication. The circumstances referred to above do not all weigh equally heavily. Which circumstances apply and what weight should be attached to applicable circumstances depends on the specific case.
4.8.
The District Court will assess each publication separately and will consider as follows.
The publication on the Sikkom.nl website entitled 'Tenants of [plaintiff 2] must walk kilometres for expensive and full parking spaces' of 7 November 2018.
4.9.
Plaintiff 1] and Plaintiff 2] cite several allegations that they consider to be unlawful. In summary, [plaintiff 1] and [plaintiff 2] consider it unlawful:
(i) that [Claimant 1] is accused in the article of cheating, misleading, blackmailing, intimidating and/or threatening;
(ii) that the article is published contrary to the truth about them. In doing so, they explicitly mention the following points:
(a) that the article gives the impression that [plaintiff 1] obliges (hundreds of) tenants to rent parking spaces from her;
b. that the article mentions the fact that several tenants are suing the rent committee, lawyers, legal service providers and [plaintiff 2] itself;
c. that the article mentions the presence of Polish construction workers around the buildings of [plaintiff 1];
d. that the article mentions that a tenant regularly receives intimidating and blackmailing e-mails and that several tenants have been put under pressure to sign contracts;
e. that the article mentions that [plaintiff 1] is a company that cunningly uses the overstretched Groningen rental market;
(iii) that they were misquoted in the article;
(iv) that the reporting is shocking and disrespectful.
Re (i)
4.10.
Claimant 1] and Claimant 2] read the article in such a way that they are accused of cheating, misleading, blackmailing, intimidating and/or threatening. NDC Media Group and [defendant 2] contest that reading. They have argued that the article should be read in such a way that in the rental world in which cheating, misleading, blackmailing, intimidating and/or threatening occurs frequently, ingenuity reigns supreme. The Court follows
NDC Media Group and [defendant 2] not in that defense. Contrary to what NDC Mediagroep and [defendant 2] apparently do, the article must be considered in its entirety. On the basis of that consideration of the whole, it must be established that [plaintiff 1] is associated with cheating, misleading, blackmailing, intimidating and/or threatening.
4.11.
The article is written:
Things can never once go normal in the rental world in Groningen. At least, so it seems. There are of course plenty of good landlords. But there are also many who cheat, mislead, blackmail, intimidate and/or threaten. In this scam, under increasing pressure from politics and the media, they are becoming increasingly inventive. An example of this is the couple rental with parking spaces used by [plaintiff 1].
4.12.
In the aforementioned text, the aforementioned scam, misleading, blackmailing, intimidating and/or threatening cannot, in the opinion of the District Court, directly result in
plaintiff 1] or [plaintiff 2] are involved. In the article, however, the words 'in that scam' and 'are examples thereof' are used. In the opinion of the Court, the use of those words indirectly insinuates that [plaintiff 1] and/or [plaintiff 2] fall under the category of landlords who defraud, mislead, blackmail, intimidate and/or threaten. After all, the relevant passage in the article gives the impression that [plaintiff 1] and/or [plaintiff 2] are part of 'that scam'. This is sufficient to give the reader of the article the impression that [plaintiff 1] and/or [plaintiff 2] are also guilty of the improper conduct referred to in the article.
4.13.
Committing fraud, deception, blackmail, intimidation and/or threats are serious suspicions, which may not be expressed or insinuated lightly.
Plaintiff 1] and [Plaintiff 2] have the obligation and the burden of proof under Article 150 of the Code of Civil Procedure (Rv) to support the assertion made that the aforementioned insinuations are unfounded. On the other hand
NDC Mediagroep and [defendant 2] are expected to further substantiate their insinuations by stating that there was sufficient plausible reason in factual material to
(plaintiff 1) and (plaintiff 2) (indirectly or otherwise) in connection with fraud, deception, blackmail, intimidation and/or threats and to publish about them. From
However, NDC Mediagroep and [defendant 2] do not have to be expected to justify that the accuracy of the publication is beyond doubt.
4.14.
NDC Mediagroep and [defendant 2] have explained in detail the reasons why they linked [plaintiff 1] and [plaintiff 2] to the actions discussed in the article. They have argued that [Plaintiff 1] and [Plaintiff 2] oblige tenants (who sometimes do not even own a car) to rent a parking space that is miles away from the accommodation and that according to [Plaintiff 1] and [Plaintiff 2] is not intended to be used. According to NDC Mediagroep and [defendant 2], there are sufficient indications that things are happening in the rental practice of [plaintiff 1] and [plaintiff 2] that are not correct and cannot be accepted. In support of this, NDC Mediagroep and [defendant 2] have, among other things, referred to a judgment of the rent commission against [plaintiff 2] in which the rent commission ruled that 'the rented parking space, certainly in view of the distance of the living space, is not part of the living space', rental agreements of [plaintiff 1] and [plaintiff 2] in which residential units with parking spaces are rented out, leases (with parking space) in the name of [plaintiff 2] requiring payments to be made to [plaintiff 1], a number of statements by tenants of [plaintiff 1] and [plaintiff 2] in which they state that they could not rent accommodation without also renting a parking space and a transcription of a sound clip stating that [plaintiff 2] (among others) says: I do add, we put it down on paper in such a way that tenants are eligible for rent allowance, but it is actually not the intention that cars are parked here as well. Against this background, NDC Mediagroep and [defendant 2] have used the words written in the article. According to NDC Mediagroep and [defendant 2], this is absolutely right, because there is behaviour that is not acceptable if you make tenants pay for a parking space that may not be used and that they do not need. Furthermore, NDC Mediagroep and [defendant 2] have argued that they do not use used terms in a criminal sense.
4.15.
Plaintiff 1] and [Complainant 2] have contested the substantiation put forward by NDC Mediagroep and [defendant 2]. Plaintiff 1] and [Plaintiff 2] claim that only [Plaintiff 2] rents homes with parking spaces, so that NDC Mediagroep and [defendant 2] have been too firm in their reporting that [Plaintiff 1] / [Plaintiff 1] also rents homes with parking spaces. Furthermore, [Plaintiff 1] and [Plaintiff 2] state in response to the statements of tenants submitted by NDC Mediagroep and [defendant 2] that they cannot determine whether these are tenants, because the traceable data of the tenants have been removed. According to [Plaintiff 1] and [Plaintiff 2], however, this concerns only a very small percentage of dissatisfied tenants.
Claimant 1] and [Claimant 2] have further disputed the contents of all statements.
4.16.
The District Court does not follow [plaintiff 1] and [plaintiff 2] in the assertion
NDC Media Group and [defendant 2] have been too firm in their reporting that
[plaintiff 1] / [plaintiff 1] would also have rented homes with parking spaces. The reason for this is that the lease agreement challenged by NDC Mediagroep and [defendant 2] as production 5 in conclusion of the reply shows that a lease agreement in which housing with a parking space is rented out is exclusively in the name of [plaintiff 1]. Furthermore, it is reasonable to assume that
NDC Mediagroep and [defendant 2] as production 7 brought another lease agreement (relating to a parking space) into dispute by conclusion of the reply. Although that lease was made in the name of [plaintiff 2], all the contact details contained in the lease correspond to those of
[plaintiff 1] . Furthermore, in that lease a trade name of
claimant 1] and it is stipulated that the start-up costs for the lease agreement will be collected by [claimant 1]. Finally, there is also reason to believe that NDC Mediagroep and [defendant 2], as production 8, have challenged a letter accompanying the conclusion of a lease agreement with regard to a parking space. This also shows that the start-up costs for the lease agreement will be collected by [Claimant 1] and the address details used correspond to the address details of [Claimant 1].
4.17.
In view of the above, the District Court is of the opinion that the contents of the relevant rental agreements and the accompanying letter to those rental agreements are sufficient to show that [plaintiff 1] has (also) leased dwellings with parking spaces, or was involved in this in any way, or that there was sufficient confusion to be able to make those assumptions.
4.18.
It has not been asserted or demonstrated that the correctness of the submitted rental agreements cannot be assumed. The District Court therefore sees no reason to doubt the reliability and correctness of the submitted rental agreements (and accompanying letters).
4.19.
With regard to the statements of tenants of [plaintiff 1] and [defendant 2] brought into dispute by NDC Mediagroep and [defendant 2] in which they state that they could not rent accommodation without also renting a parking space, the court considers as follows. Claimant 1] and [Claimant 2] have indeed contested the contents of the statements in question, but the District Court sees no reason to doubt the reliability of the statements submitted. In doing so, the court takes into account that NDC Mediagroep and [defendant 2] have argued that the statements have been checked by them. The fact that the statements cannot be traced back to individual tenants does not alter the above. It has not emerged that the statements are unreliable or do not originate from tenants of [plaintiff 1] or [plaintiff 2]. Claimant 1] and [Claimant 2] acknowledge in any case that two statements do originate from their tenants.
4.20.
In so far as relevant here, the following is stated in the statements:
Statement 1
During the contract meeting at the office of [plaintiff 2] it was said that I cannot rent the accommodation without the parking space. The lease of the studio and the parking lot are inextricably linked. I do not remember the exact wording, but it was not an option to rent the living space without the parking space.
Explanation 2
Then I wanted to get rid of the parking spot because I was getting more and more suspicious of it and was told by legal advice that it is not allowed either. After hearing this and finding out through the points system of the rent assessment commission that the rent is actually too high for the property, I called in the rent assessment commission and told them my story.
Statement 3
When I arrived at the office, together with frank [plaintiff 2], I passed the contract, where the parking lot came up for discussion. (...) According to Frank [plaintiff 2], I didn't really have to pay attention to this, because this way I could apply for a rent subsidy. So actually more for my benefit, whether I own a car or not. He also indicated that the studio only comes with the parking lot.
Statement 4
For the rental of a house at [plaintiff 2] I was obliged to take a parking place. This would not exist, but would be in contact to give people under the age of 23 also the right to a rent allowance. If you want the property you have to take that non existing parking space or they will just take another tenant.
Statement 5
They literally tell you at the act of signing the contract that it's a way for the tenant to get rent allowance.
Declaration 6
I've been a tenant with [plaintiff 2] since August 2017. I required a parking space of 75 euros per month. They only did it so I could get rent allowance. I don't even get that because of work and the standard of it. I also mentioned this at the time. On this I asked where I could put my car? Then they said I wasn't supposed to use that place.
4.21.
In the District Court's opinion, the contents of the relevant statements give the impression that [plaintiff 1] and [plaintiff 2] were using a rental structure in which tenants, if they wanted to rent through [plaintiff 1] or [plaintiff 2], were obliged to rent a parking space even if they do not own a car or are not eligible for a rent supplement, while those parking spaces were not or only limited available to the tenants.
4.22.
Finally, the District Court considers in this respect that NDC Mediagroep and [defendant 2] have brought a transcription of a sound clip into dispute. This states that [plaintiff 2] (among other things) says: I do say, we put it down on paper in such a way that tenants are eligible for rent allowance, but it is actually not the intention that cars are parked here as well. The contents of the transcription in question has not been disputed by [plaintiff 1] and [plaintiff 2]. The content of that transcription confirms the resulting image that tenants were obliged to rent a parking space when it was not or only to a limited extent available to the tenants.
4.23.
Considering the above in context and context, it follows that NDC Mediagroep and [defendant 2] have sufficiently substantiated their insinuations that there was (indirect) reason to link [plaintiff 1] and [plaintiff 2] (indirectly) to the improper conduct referred to in the article. In this respect, the District Court considers that the terms of fraud, deception, blackmail, intimidation and threats used in the article have not, in its opinion, been used in a criminal sense. In the District Court's opinion, the terms used are commonplace and it is clear to the reader that the article refers to conduct that is not acceptable and that there is no question of terminology in a formal-legal sense. In addition, the District Court takes into consideration that the terms used fit in with Sikkom's style of writing, which expresses itself with coarser language than that used in the traditional media, critically, informatively, opinion-forming and warning about abuses committed by the inhabitants of the city of Groningen. The court further considers that the text of the article nuances and explains the accusations made. The publication should therefore be read in the light of the foregoing.
4.24.
In view of the nature of the published suspicions, the seriousness - from the point of view of the public interest - of the misconduct that the publication is intended to expose, and the extent to which at the time of publication the suspicions found support in the available factual material, the District Court does not consider the publication in this section to be unlawful, despite the expected consequences for [plaintiff 1] and [plaintiff 2] thereof.
Re (ii)
4.25.
Claimant 1] and [Claimant 2] further state that the article is published about them contrary to the truth and consider this to be unlawful. The District Court will assess the inaccuracies alleged by [plaintiff 1] and [plaintiff 2] point by point.
Re (ii a)
4.26.
Claimant 1] and [Claimant 2] first state that the article gives the impression that [Claimant 1] obliges (hundreds of) tenants to rent parking spaces with it. In view of what has already been considered in the foregoing, the District Court can be brief about this. In the factual material as discussed, it is sufficiently concluded that there was a plausible reason for NDC Mediagroep and [defendant 2] to state or create the impression that [plaintiff 1] obliges tenants to rent parking spaces with it. The court therefore does not consider this part of the publication to be unlawful. The fact that the article refers to possibly hundreds of tenants does not alter the foregoing. The article mentions this:
What is also crazy: according to [name 1] , of Frently, dozens, if not hundreds of tenants are obliged to take the parking space for a lot of money, while there is only room for dozens of cars.
4.27.
In the court's opinion, NDC Mediagroep and [defendant 2] therefore do not present it as a fait accompli that it actually concerns hundreds of tenants. There is talk of dozens, if possible hundreds of tenants. Moreover, in the opinion of the court, this part of the article should be read in such a way that these numbers come from [name 1] , not from NDC Mediagroep and [defendant 2] itself. Later on in the article it is written: 'To check whether it really concerns dozens, and maybe even hundreds of tenants, we will visit two different properties of [plaintiff 1]', which also does not state the fact that it concerns hundreds of tenants.
Re (ii b)
4.28.
Plaintiff 1] and [Plaintiff 2] claim, secondly, that the article makes reference to the fact that several tenants bring the appointed construction before the Rent Commission, lawyers, legal service providers and [Plaintiff 2] itself.
4.29.
There is no dispute between the parties that the assessment of the initial rent of a rented accommodation has taken place before the Rent Commission. NDC Mediagroep and [defendant 2] have argued that several tenants of [plaintiff 1] and [plaintiff 2] have reported to them that they have filed the matter with a lawyer or legal service provider. Furthermore, NDC Mediagroep and [defendant 2] have argued that in the run-up to these proceedings they have been in contact with several lawyers and legal service providers assisting tenants of [plaintiff 2]. The foregoing has been stated by
[plaintiff 1] and [plaintiff 2] not disputed. Plaintiff 1] and [plaintiff 2] only argue in the conclusion of the reply in convention that it is exaggerated and 'turns out to be not so bad'. Therefore, the District Court assumes the correctness of the statement made in the article and does not consider this part of the publication to be unlawful.
Re (ii c)
4.30.
Claimant 1] and [Claimant 2] claim, thirdly, that the article refers to the presence of Polish construction workers around the buildings of [Claimant 1]. In addition, [Claimant 1] and [Claimant 2] claim that the article incorrectly puts away people from a Polish background and [Claimant 1] and [Claimant 2] by extension. According to [plaintiff 1] and [plaintiff 2] the article wrongly portrays the image that residents do not show the back of their tongue because of the presence of Polish construction workers.
4.31.
The article is written:
"There are more crazy things going on here", he whispers, so that the Polish construction workers present can't send any letters to the landlord.
and
Because the Polish construction workers keep circling around us like vultures, we decide to continue the conversation by e-mail.
and
Other residents don't show the back of their tongues either because of the handymen present.
4.32.
The court states first of all that [plaintiff 1] and [plaintiff 2] do not dispute that they use or have used Polish construction workers. Their objection focuses on the alleged improper treatment in the article. According to [plaintiff 1] and [plaintiff 2], people with a Polish background are portrayed in the article as wrong people who just send letters to the landlord and circle around like vultures. The court considered as follows.
4.33.
It is true that the tone of the article evokes an image that tenants do not dare to speak freely because of the outlined presence of 'the Polish construction workers', but no more than that. The Court did not consider the Sikkom style tone used to be hurtful or insulting to such an extent that this part of the article should be regarded as unlawful.
Re (ii d)
4.34.
Claimants 1] and 2] claim, fourthly, that the article mentions that a tenant regularly receives intimidating and blackmailing e-mails and that several tenants have been put under pressure to sign contracts. Plaintiff 1] and [Plaintiff 2] dispute this.
4.35.
The article mentions this:
According to the tenant, he regularly receives intimidating and blackmailing e-mails. "I've complained a couple of times, [plaintiff 2] reacts to them very much and weirdly, if there's any reaction at all". Claimant 2 mails him several times that he wants to get rid of the tenant because the other occupants of the property have finished with his behavior.
4.36.
NDC Mediagroep and [defendant 2] have been disputed by
Plaintiff 1] and Plaintiff 2] addressed the circumstances and sources that led them to include the aforementioned text in the article. In that context, they refer, inter alia, to a recorded telephone conversation between a tenant and [plaintiff 1], in which, according to them, the following was said by [name A]:
Because you are too lazy to come here, we brought him here.
Now you're gonna give us a big mouth.
If you're home, I'll stop by now.
4.37.
According to [plaintiff 1] and [plaintiff 2] it is true that [name A] was shot out of his slipper in one incident. However, according to [plaintiff 1] and [plaintiff 2], the sentence 'Are you at home? According to [plaintiff 1] and [plaintiff 2], the conversation was about problems with the power supply that the tenant experienced and [name A] - despite the emotions - offered to drop by to solve the problem.
4.38.
NDC Mediagroep and [defendant 2] further refer to statements made by another tenant:
Next, I wanted to leave the parking spot because I became more and more suspicious of this and was told by legal advice that it is not allowed either. After hearing this and also finding out via the rent assessment commission's points system that the rent is actually too high for the premises, I called in the rent assessment commission and told them my story. Then I made an appointment for an interview to see if it could be solved this way. During this conversation I was told that if I would continue with the rent assessment I would still have to pay my fine for the remaining terms of my PREVIOUS contract. Whereupon a dirty grin is said that it was one and / or situation and that they can still choose to let me pay a fine. Also there were 2 people in this conversation while I was under the assumption that I was talking to 1 person. I felt rather intimidated and already had money problems and was currently in sickness law because of a broken shoulder and an accident at work.
Their solution?
I don't start a case with the rent commission and leave my house in December, I don't know but finding a new house in December within 1 month is not easy. I put my things in storage and lived in a squat for 4-5 months.
4.39.
NDC Mediagroep and [defendant 2] also refer to a telephone conversation between a tenant and [plaintiff 2]. In that telephone conversation [plaintiff 2] said the following:
And once you have signed, then we assume, and certainly you who are sitting in this beautiful room (...) then I think to myself, you, well you special, then go to the Rent Commission who has to point us in the right direction. (...) If we had known that in advance, we wouldn't have done business with you. Then you wouldn't be such a beloved person with us, so to speak. (...) We have to stick to a score. Well, that score is X, I don't know those grades by heart. We'll put a parking space in there ... but that's not really the point, but we've got a deal on the total price. Well, I guess to myself, if you make a deal, do you do business with an unreliable tenant or what is that?
4.40.
According to [plaintiff 1] and [plaintiff 2] quotes by NDC Mediagroep and [defendant 2] have been taken out of context. According to [Plaintiff 1] and [Plaintiff 2], the tenant was a tenant in financial difficulties with whom a settlement had been reached. Plaintiff 2] is said to have been extremely accommodating, according to [Plaintiff 1] and [Plaintiff 2].
4.41.
In the District Court's opinion, the article presents the fact that a tenant regularly receives intimidating and blackmailing e-mails from [plaintiff 1] or [plaintiff 2]. The article also presents as a fact that [plaintiff 2] would have emailed the same tenant several times that he wants to get rid of the tenant because the other occupants of the property have finished their behaviour. However, in the opinion of the court, the reasoning and substantiation put forward by NDC Mediagroep and [defendant 2] do not show this. To the extent that the substantiation provided in the light of the dispute of [plaintiff 1] and [plaintiff 2] in that respect can already show intimidation and blackmail of a tenant, it does not show that there is regularity. Neither does it show that [plaintiff 2] has repeatedly e-mailed the tenant that he wants to get rid of the tenant because the other occupants of the premises have finished with his conduct.
4.42.
The foregoing implies that the factual material as discussed does not sufficiently conclude that there was a plausible reason for NDC Mediagroep and [defendant 2] to state that the tenant regularly receives intimidating and blackmailing e-mails and that [plaintiff 2] repeatedly mails the same tenant that he wants to get rid of the tenant because the other occupants of the premises have finished with his behaviour. Now that nothing else has been stated or turned out to substantiate this part of the publication, the District Court deems this part of the publication unlawful.
Re (ii e)
4.43.
Claimant 1] and [Claimant 2] claim fifthly that the article mentions that [Claimant 1] is a company that makes cunning use of the Spangled Groningen rental market. In view of what has already been considered in the foregoing, the District Court can also be brief about this. In the factual material as discussed, it is sufficiently concluded that there was a plausible reason for NDC Mediagroep and [defendant 2] to state that [plaintiff 1] is a company that cunningly makes use of the Spangled Groningen rental market. The fact that the rental market - in general, but certainly in Groningen - is overstrained is a fact of general familiarity. The fact that tenants such as [plaintiff 1] and [plaintiff 2] state that they always have a number of days to consider before signing the lease, does not make the foregoing any different. Plaintiff 1] and [plaintiff 2], when concluding that they are putting tenants under pressure, still dispute that they are putting tenants under pressure, but that is not what NDC Mediagroep and [defendant 2] state in the article. The court therefore ignores this. The court therefore does not consider this part of the publication to be unlawful.
Re (iii)
4.44.
Claimant 1] and [Claimant 2] furthermore consider it unlawful that [Claimant 2] was quoted under the heading 'The taxpayer will do the docking' contrary to the truth. The following has been written in the article:
plaintiff 2] , in person and not through the director [name A] , for example, tells a tenant that the parking space does not actually exist. But that they coat him in the contract to raise the rent. That is beneficial for the tenant, says [plaintiff 2] . Because he is then eligible for a rent allowance. That listens rather closely. A room should not be too expensive or too cheap. By adding the parking space, the total rent will be exactly the amount that the law prescribes that a surcharge is possible. Hard win-win, according to [plaintiff 2] . The taxpayer covers the gap. But the practice is much more stubborn. Against another tenant, [plaintiff 2] states that it is not the intention that the parking space should actually be used.
4.45.
According to [plaintiff 1] and [plaintiff 2] this is nonsense and does not prove anything at all. Claimant 1] and [Claimant 2] state that the relevant text has been included as a quote in the article so that it seems as if [Claimant 2] has spoken to [defendant 2], whereas this has not been the case, according to [Claimant 1] and [Claimant 2]. NDC Mediagroep and [defendant 2] argue that they indeed did not speak directly with [plaintiff 2] in this respect and that the article cannot be read as such either. The court considers as follows.
4.46.
The article states 'tells for example against a tenant' and 'states against another tenant [plaintiff 2]'. In the opinion of the District Court, the average reader of the article will understand that this is not a direct quote from [plaintiff 2] to
NDC Media Group or [defendant 2], but that the article mentions something that [plaintiff 2] said to tenants. In this respect, the District Court considered that within journalism it is common for quotations to be shortened or paraphrased. This working method is allowed in principle, provided that the essence of the reaction of the person concerned remains known. Therefore, it does not matter whether [plaintiff 2] said the words as quoted in the article literally as such.
4.47.
The next question is whether the passage discussed above is unlawful towards [plaintiff 1] and [plaintiff 2]. The District Court is of the opinion that this is not the case. The reason for this is that, in the District Court's opinion, the factual material contains sufficient reason for NDC Mediagroep and [defendant 2] to include the relevant passage in the article in this way. The court refers in this respect to statements 4 and 6 as discussed in 4.20. and the content of the undisputed transcription of the audio fragment as discussed in 4.22.
4.48.
Claimant 1] and [Claimant 2] furthermore consider the remark included in the article 'and the dude answering the telephone at the office of [Claimant 1] also reports that Mr. [Claimant 2] is working for [Claimant 1] ' that day, just like many other days. According to [plaintiff 1] and [plaintiff 2], the remark is shocking, disrespectful and contrary to the truth. In that respect, [plaintiff 1] and [plaintiff 2] have challenged a statement made by an employee of [plaintiff 1] which, according to them, shows that Mr. [plaintiff 2] was not said by telephone to be working for [plaintiff 1] that day, just like many other days. The statement in question (production 16 by subpoena) states, in so far as relevant here:
On October 31, during my work, I received a phone call from [defendant 2] of Sikkom. In a publication on the website (...) it is stated/quoted that I would have said the following on the phone: (...)
I've never said this. I also think it's ridiculous that I'm called "dude". I indicated on the phone that Mr. [defendant 2] had to contact Mr. [name A] because I could not answer his questions. I also indicated not to answer his questions.
4.49.
NDC Mediagroep and [defendant 2] have argued in response to this statement at issue that an employee of [plaintiff 1] did inform Sikkom by telephone that [plaintiff 2] is employed by [plaintiff 1] and performs work for [plaintiff 1] and that the statement of the employee does not make this any different now. Furthermore, NDC Mediagroep and [defendant 2] point out in this respect that [plaintiff 1] , [plaintiff 1] and [plaintiff 2] are in fact the same party. NDC Mediagroep and [defendant 2] also point out that Mr Frank [plaintiff 2] works for [plaintiff 1] and signs contracts on behalf of [plaintiff 1]. Therefore, according to NDC Mediagroep and [defendant 2], it is correct that Mr [plaintiff 2] responded in the article on behalf of [plaintiff 1]. The court considers as follows.
4.50.
The parties dispute what was said in the telephone conversation in question. It appears from the submitted statement of the employee of [plaintiff 1] that he spoke to [defendant 2] by telephone in person. Defendant 2] has subsequently expressed his representation of the contents of that telephone conversation in the article concerned. The District Court is of the opinion that, precisely now that the article gives an account of a telephone conversation that [defendant 2] personally had in his capacity as a journalist, the correctness of this account may be assumed. However, this does not alter the fact that the statement of the employee of [plaintiff 1] that has been challenged shows a different content of the telephone conversation. However, in the District Court's opinion, the exact content of the telephone conversation can remain in the middle. The reason for this is that the article states that '[plaintiff 2]' is an employee of [plaintiff 1]. In the opinion of the District Court, in view of the other contents of the article, the average reader will assume that Mr. [plaintiff 2] is referred to. This while NDC Mediagroep and [defendant 2] actually mean Mr [name 2]. The court is of the opinion that although this part of the article may lead the reader to make an incorrect assumption about the person of 'Mr [plaintiff 2]', there is no question of such a distorted picture that this is unlawful reporting. This is because [name 2] does work for [plaintiff 1] and in that sense no factual inaccuracies are proclaimed in the article. However, the court is of the opinion that NDC Mediagroep and [defendant 2] have acted negligently with regard to this part of the article, but this does not lead to unlawful conduct.
4.51.
Finally, with regard to this part of the article, the court is of the opinion that the description of the employee of [plaintiff 1] with 'dude' is not offensive or insulting, so that the article cannot be regarded as unlawful in that sense either.
Re (iv)
4.52.
Finally, [plaintiff 1] and [plaintiff 2] claim that they consider the article to be unlawful because the reporting is shocking and disrespectful. The District Court considers as follows.
4.53.
In the contested article the rental practices of [plaintiff 1] and [plaintiff 2] are exposed in a critical tone. In doing so, the author of the article gives his opinion in an unambiguous manner and uses language that is characterised by a coarser use of language than traditional media to reinforce the message of the article. The style and tone of the article fits Sikkom's general writing style and, in the opinion of the District Court, is not (to such an extent) offensive or insulting that the article should be regarded as unlawful.
The publication on the website of the Dagblad van het Noorden of 7 November 2018 with the headline 'Miles walking for parking space at rented accommodation' and the same publication in the paper edition of the Dagblad van het Noorden of 8 November 2018.
4.54.
plaintiff 1] and [plaintiff 2] mention several accusations that they consider to be unlawful. Summarised, [plaintiff 1] and [plaintiff 2] considered it unlawful to publish about them in the article contrary to the truth. They explicitly mention the following points:
(a.) that the article mentions the fact that if you want to rent a house from [plaintiff 1], you are regularly obliged to rent a parking space for € 100 to € 200 per month via a separate contract;
(b.) in the article [name 1] mentions the fact that many more tenants are obliged to take a parking space than [plaintiff 2] has parking spaces;
(c.) that under the heading 'Right of the Rent Commission' the article makes it appear that a tenant is to be found in the right by the Rent Commission where the alleged 'construction' is concerned.
Re (a.)
4.55.
Plaintiffs 1] and 2] claim in the first place that the article wrongly mentions the fact that they also oblige tenants who wish to rent accommodation from them to rent parking spaces from them. With regard to this part of the article, the District Court refers to what was considered with regard to the article on the Sikkom website of 7 November 2018. In the opinion of the court, the factual material as discussed sufficiently concluded that there was a plausible reason for NDC Mediagroep and [defendant 2] to state that if you want to rent a house with [plaintiff 1], you are regularly obliged to rent a parking space for € 100 to € 200 per month via a separate contract. The court therefore does not consider this part of the publication to be unlawful.
Re (b.)
4.56.
Claimant 1] and [Claimant 2] state in the second place that the mention of [name 1] in the article is incorrect and, moreover, irrelevant. The article states:
According to [name 1] of legal consultancy Frently, many more tenants are obliged to purchase a parking space than [plaintiff 2] has parking spaces.
4.57.
In the District Court's opinion, the fact that NDC Mediagroep and [defendant 2] actually oblige more tenants to purchase a parking space than [plaintiff 2] has parking spaces is not presented as a fait accompli by NDC Mediagroep and [defendant 2]. It only concerns a cited opinion of [name 1] . The District Court therefore does not consider this part of the publication to be unlawful.
Re (c.)
4.58.
In the third, [plaintiff 1] and [plaintiff 2] state that the article makes it appear that a tenant is put in the right by the Rent Commission where the alleged 'construction' is concerned. The article states:
Equal of Rent Commission
Several tenants brought the construction before the Rent Commission, lawyers, legal service providers and [plaintiff 2] itself. A decision of the Rent Commission is in the tenant's favour.
According to the Committee, the parking space - also due to the distance to the residence - may not be counted with the residence, nor may it be included in the scoring. The committee ruled that the rent should be reduced by 60 euros per month.
4.59.
According to [plaintiff 1] and [plaintiff 2], the Rent Committee did not find in favour of the tenant in this respect at all. According to [plaintiff 1] and [plaintiff 2], the Rent Committee only adjusted the scoring of the accommodation downwards and made a minor adjustment to the rent. According to [plaintiff 1] and [plaintiff 2], the Rent Committee did not wish to comment on the permissibility of the coupled rental of accommodation with a parking space. NDC Mediagroep and [defendant 2] argue that what they said in the article is correct. According to
NDC Mediagroep and [defendant 2] with the Rent Commission were proved right in the sense that the rent was adjusted downwards.
4.60.
The relevant decision of the Rent Commission has been challenged as production 4 by means of a reply in convention. In so far as relevant, the Rent Commission ruled in that respect:
Due to the separate tenancy agreement, but certainly also due to the distance of the residential property, the car park does not form part of the residential property and cannot be qualified as an immovable part thereof. The Committee will therefore assume a rent (...) and is of the opinion that the car park does not belong to the dwelling and should therefore not be included in the scoring.
4.61.
The District Court agrees with [plaintiff 1] and [plaintiff 2] that the opinion of the Rent Commission is limited to the scoring of the tenant's accommodation. The Rent Commission only ruled that the parking space does not form part of the housing accommodation and should therefore not be included in the scoring. This says nothing about the permissibility of the couple's rental and whether the tenant is in the right in that respect. However, that does not mean that the article on this section is unlawful. There is the following reason for this. Although the first paragraph under the heading 'Equal of the Rent Commission' gives the impression that the Rent Commission has expressed an opinion on 'the construction', the second paragraph nuances the situation by stating exactly what the opinion of the Rent Commission was. The District Court therefore does not consider this part of the publication to be unlawful.
Other
4.62.
Fourthly and finally, [plaintiff 1] and [plaintiff 2] claim that the content of the article was incorrectly created and [plaintiff 1] and [plaintiff 2] are put in a very suggestive light.
4.63.
In this respect, the District Court refers to what it considered in rov. 4.53 and does not consider this article to be unlawful in this general sense either.
The publication on the Facebook page of Sikkom with the headline 'Tenants of [plaintiff 2] have to walk kilometres for expensive and full parking space'.
4.64.
The publication on the Sikkom Facebook page entitled 'Tenants of [plaintiff 2] must walk kilometres for expensive and full parking space' has the same content as the article posted on the Sikkom website on 7 November 2018 entitled 'Tenants of [plaintiff 2] must walk kilometres for expensive and full parking space'. The objections of [plaintiff 1] and [plaintiff 2] to this publication are therefore the same as those considered in rov. 4.9. The District Court therefore refers to what it has considered with respect to these objections. Except for the part of the publication as considered in appeal 4.42, the District Court does not consider this publication unlawful.
The publication on the personal Facebook page of Mr [defendant 2] with the text 'The umpteenth scandal in the rental sector in Groningen', after which there is a reference to the publication on the website of Sikkom
4.65.
The Court understands that this publication only contains the text 'The umpteenth scandal in the rental sector in Groningen' with a reference to the publication of the article of 7 November 2018 on the Sikkom website entitled "Tenants of [plaintiff 2] must walk kilometres for expensive and full parking spaces".
4.66.
Insofar as [plaintiff 1] and [plaintiff 2] intended to argue that the text "The umpteenth scandal in the rental sector in Groningen" is unlawful, the District Court ignores this, since nothing has been stated about it.
4.67.
Insofar as [plaintiff 1] and [plaintiff 2] intended to argue that the reference to the publication of the article of 7 November 2018 on the Sikkom website with the title "Tenants of [plaintiff 2] have to walk kilometres for expensive and full parking spaces" is unlawful, the District Court also overlooks this, since nothing has been stated in this respect either.
4.68.
Insofar as [plaintiff 1] and [plaintiff 2] intended to argue that the content of the article referred to is unlawful, the District Court refers to what it considered under 4.63.
The publication on the personal Facebook page of [defendant 2] , in which a video can be seen on which at the end a message can be read with the text 'Stadhuis koketteert met [plaintiff 1] , terwijl het bedrijf misleidt, oplicht, intimidatie en bedreigt' (City Hall is coquetting with [plaintiff 1] , while the company misleads, scams, intimidates and threatens'.
4.69.
plaintiff 1] and [plaintiff 2] claim that a video has been posted on [defendant 2]'s personal Facebook page that reads, "City Hall is coquetting with [plaintiff 1] , while the company is deceiving, scamming, intimidating and threatening. plaintiff 1] and [plaintiff 2] further state in this respect that the text in question contains unacceptable accusations, without it being possible to read any other text. According to [plaintiff 1] and [plaintiff 2], [defendant 2] has thereby acted negligently and unlawfully towards them.
4.70.
NDC Mediagroep and [defendant 2] argue that the video fragment in question is taken out of context by [plaintiff 1] and [plaintiff 2]. According to NDC Mediagroep and [defendant 2], [defendant 2] only wanted to share a video that was about something else with friends. According to NDC Mediagroep and [defendant 2] the computer screen of [defendant 2] is visible for a few seconds in the video fragment in question. On the computer screen of [defendant 2] the alleged unlawful text is visible. According to NDC Mediagroep and [defendant 2] there is no chance that visitors of the Facebook page have read the text in question so that the video fragment would not be detrimental to [plaintiff 1] and [defendant 2].
4.71.
The court holds first and foremost that the personal Facebook page of [defendant 2] is accessible to everyone. Plaintiff 1] and [Plaintiff 2] have argued undisputedly that the relevant video had 620 views, three comments were posted with the video and 27 emoticons were posted in response to the video. Furthermore, [plaintiff 1] and [plaintiff 2] have denied that [defendant 2] has 373 followers on his personal Facebook page. In view of this, the Court disregarded the defence of NDC Mediagroep and [defendant 2] that 'there is no chance that visitors of the Facebook page have read the text in question'.
4.72.
It has been established between the parties that the alleged unlawful text can be seen in the video fragment. However, it concerns text that can be seen in a video fragment that is recorded in a context not related to the work of [defendant 2], covers a completely different subject, is only in the picture for one second or a few seconds. In view of these circumstances, the court deems the publication in question to be careless. After all, it may be expected of [defendant 2] that he takes sufficient care when disseminating information, regardless of the context in which this occurs. However, the foregoing does not lead to the conclusion that the publication in question is also unlawful.
The publication on the Sikkom website with the heading ' [plaintiff 1] sues us in court, but withdraws at the last moment'.
4.73.
Plaintiff 1] and plaintiff 2] mention several allegations that they consider to be unlawful. In summary, [plaintiff 1] and [plaintiff 2] deem it unlawful:
(i) the article was published without any form of adversarial process;
(ii) the article has been published about them contrary to the truth in the sense that it is stated with great certainty that NDC Mediagroep and [defendant 2] have audio fragments in which employees of [plaintiff 2] explain the maligned construction;
(iii) Mr [name 2] has been incorrectly quoted in the article.
Re (i)
4.74.
plaintiff 1] and [plaintiff 2] claim that the article in question was published by NDC Mediagroep and [defendant 2] without any form of inter partes. The Court understands from the statements of [plaintiff 1] and [plaintiff 2] that they consider this to be unlawful. The court considers as follows.
4.75.
The right to be heard is not an absolute right, so publication of article of
27 November 2018 is not unlawful, merely because [plaintiff 1] and [plaintiff 2] were not asked for a reply. Apart from this, the District Court considered that the e-mail correspondence that was brought into dispute shows that NDC Mediagroep and [defendant 2] did have contact with [plaintiff 1] and [plaintiff 2] prior to the publication of the article of 27 November 2018. It appears from the correspondence that [defendant 2] asked [plaintiff 1] and [plaintiff 2] in any case why they withdrew the preliminary relief proceedings the day before the oral hearing thereof. This is written about in the article. Moreover, it follows from the
e-mail correspondence as discussed in rov. 2.9. to 2.17. that [Claimant 1] and [Claimant 2] were repeatedly offered the opportunity to be heard on several occasions prior to the publications of 7 and 8 November 2018. For instance, in the e-mail of November 4, 2018, [defendant 2] requests [name A] to respond to the intended article, especially if [plaintiff 1] and [plaintiff 2] believe that there are untruths in it. Also, [defendant 2] [name A] pointed out in the aforementioned e-mail that he has statements from tenants and recordings in which [plaintiff 2] indicates that it is not the intention that the parking place is used. In response to this [name A] has only referred to the contents of his e-mail of
2 November 2018 and [defendant 2] has given notice that it will no longer respond to requests/notices from NDC Mediagroep and [defendant 2]. Now that the article of 27 November 2018 follows from the articles of 7 and 8 November 2018 and [plaintiff 1] and [plaintiff 2] have been offered the possibility of a second hearing, the court does not consider the (possible) absence of a second hearing prior to the article of 27 November 2018 to be unlawful. The question as to whether there was (sufficient) opportunity for a counter-arbitration may therefore remain unanswered.
Re (ii)
4.76.
Plaintiff 1] and [Plaintiff 2] claim that the article wrongly states with great force that NDC Mediagroep and [defendant 2] have sound fragments in which employees of [Plaintiff 2] explain the maligned construction. The article states:
In addition, we have audio fragments in which employees of [plaintiff 2] explain the maligned construction. In these conversations it emerges that it is not the intention that the places are actually used. This is also explained by other tenants.
4.77.
NDC Mediagroep and [defendant 2] have submitted a transcription of a sound clip as a production 10 by conclusion of response in convention in which it is stated that [plaintiff 2] (among other things) says: I do add, we put it down on paper in such a way that tenants are eligible for rent allowance, but it is actually not the intention that cars are parked here as well. The contents of this transcription has not been disputed by [plaintiff 1] and [plaintiff 2]. In view of the above, the District Court assumes that what is written in the article is correct. It is further stated in the article that other tenants explain this as well. In this respect the District Court refers to statements 4 and 6 as discussed in section 4.20. In view of this, the District Court also assumes with regard to this point that what is written in the article is correct. Therefore, the District Court does not consider the article to be unlawful on this point.
Re (iii)
4.78.
Plaintiff 1] and [Plaintiff 2] further consider it unlawful for Mr
[name 2] contrary to the truth has been quoted. In the article the following is written:
According to employee [name 2] . of [plaintiff 1] this is not a problem. "I've never seen control. And if there is, we'll have proper leases for the parking spaces. They are here (office [plaintiff 2] at Friesestraatweg). I can point them out to you, like, this way. But I do say that it is not the intention that cars are parked here. We only do it for the fee."
4.79.
According to [plaintiff 1] and [plaintiff 2] quotations are based on nothing.
Plaintiff 1] and [Plaintiff 2] challenged a statement by Mr. [name 2] in which he claims, in summary, never to have made such a statement. The District Court considered as follows.
4.80.
In the District Court's opinion, the factual material contains sufficient evidence that NDC Mediagroep and [defendant 2] had a plausible reason to include the quote in the article in this way. In this regard, the court refers to statements 4 and 6 as discussed in rov. 4.20. and the content of the undisputed transcription of the sound clip as discussed in rov. 4.22. The District Court also refers to what it considered in section 4.46. on the shortening or paraphrasing of quotations. The statement of Mr [name 2] submitted by [plaintiff 1] and [plaintiff 2] does not make the foregoing any different. The District Court therefore does not consider this part of the article to be unlawful.
The publication on the Facebook page of Sikkom.nl with the heading ' [plaintiff 1] challenges us in court, but backs down at the last minute'.
4.81.
The aforementioned publication has the same content as the Sikkom website with the heading ' [plaintiff 1] sues us in court, but withdraws at the last minute'. The objections [plaintiff 1] and [plaintiff 2] have against this publication are therefore the same as those considered in rov. 4.73. The Court therefore refers to what it has considered with respect to these objections. The District Court does not consider the article to be unlawful.
Conclusions regarding the publications
4.82.
The above leads to the following conclusions. With regard to the publication on the Sikkom.nl website with the headline 'Tenants of [plaintiff 2] must walk kilometres for expensive and full parking space' of 7 November 2018, the court deems it unlawful that NDC Mediagroep and [defendant 2] state in the article that the tenant regularly receives intimidating and blackmailing e-mails and [plaintiff 2] e-mails the same tenant several times that he wants to get rid of the tenant because the other occupants of the premises have finished with his behaviour.
4.83.
The above also applies to the publication on Sikkom's Facebook page with the headline 'Tenants of [plaintiff 2] have to walk kilometres for expensive and full parking spaces'.
4.84.
For the rest, the District Court does not consider (parts of) the publications dealt with in this case to be unlawful. This brings the District Court to the question of what consequences this has for the claims brought by [plaintiff 1] and [plaintiff 2]. To this end, the District Court considers as follows.
Removal of the publications
4.85.
In view of the opinion given by the District Court, there is no reason for the complete removal of all publications as claimed by [plaintiff 1] and [plaintiff 2].
Rectification of the publications
4.86.
In view of the opinion given by the District Court, there is reason to rectify the publications as claimed by [plaintiff 1] and [plaintiff 2], but there is no room for granting the content of the rectification as claimed by [plaintiff 1] and [plaintiff 2]. The District Court will therefore only order that the parts of the publications considered unlawful in this case are rectified in the following manner:
4.86.1.
With regard to the publication of the article on the Sikkom website entitled "Tenants of [plaintiff 2] must walk kilometres for expensive and full parking space" of 7 November 2018:
RECTIFICATION
On 7 November 2018 an article was posted on this website entitled "Tenants of [plaintiff 2] must walk kilometres for expensive and full parking spaces". The District Court of the North of the Netherlands, Groningen location, has now ruled that
it is unlawful that the article states that the tenant regularly receives intimidating and blackmailing e-mails and [plaintiff 2] mails the same tenant several times that he wants to get rid of the tenant because the other occupants of the property have finished with his behavior.
4.86.2.
With regard to the publication of the article on Sikkom's Facebook page entitled "Tenants of [plaintiff 2] have to walk kilometres for expensive and full parking space" of 7 November 2018:
RECTIFICATION
On this Facebook page an article was posted on 7 November 2018 with the title "Tenants of [plaintiff 2] have to walk kilometres for expensive and full parking space". The District Court of Noord-Nederland, Groningen location, has now ruled that
it is unlawful that the article states that the tenant regularly receives intimidating and blackmailing e-mails and [plaintiff 2] mails the same tenant several times that he wants to get rid of the tenant because the other occupants of the property have finished with his behavior.
4.87.
The court will only order NDC Mediagroep to rectify as mentioned under 4.86.1 and 4.86.2. The court sees no grounds for a joint and several conviction of defendants as claimed by [plaintiff 1] and [plaintiff 2]. This is because only the cooperation and execution of respectively NDC Mediagroep is required for the rectifications. Moreover, this does not mean that [plaintiff 1] and [plaintiff 2] could not be received in person in their claims against [defendant 2].
4.88.
With regard to the corrigendum mentioned under 4.86.2.
NDC Mediagroep and [defendant 2] stated that it is practically impossible to keep a rectification on Sikkom's Facebook page at the top for 14 days and requested the court to omit that part of the conviction. Plaintiff 1 and plaintiff 2 did not respond to this. The court sees reason to reject the request of
NDC Media Group and [defendant 2] agree to these rectifications and will forego the sentence to keep them at the top of the list for 14 days.
Filing a request with Google to remove the publications and all references to them
4.89.
In the opinion of the District Court, there is no reason to order Google to remove the publications from its Internet search engines, including all references to them, from its website. This is because the publications only need to be rectified in part and, in the District Court's opinion, submitting a request to Google for the complete removal of those publications from its Internet search engine is disproportionate.
Prohibition of negative statements
4.90.
In view of what the court has considered in this judgment, in its opinion there is no reason to prohibit NDC Mediagroep and [defendant 2] from expressing a negative opinion on [plaintiff 1] and [plaintiff 2]. In view of the in article
10 ECHR enshrined principle, the NDC Media Group and [defendant 2] are in principle allowed to make critical, informative, opinion-forming and cautionary statements about [plaintiff 1] and [plaintiff 2], even if this is experienced as negative by [plaintiff 1] and [plaintiff 2]. The claim in question will therefore be rejected.
Penalty payments
4.91.
In the opinion of the District Court, the penalty payments claimed to reinforce the requested sentence can be awarded, on the understanding that these will be limited to a maximum of € 10,000.00 per violation. The District Court sees no reason, without any other explanation, for a mitigation of a penalty of up to € 100.00 per day as requested by NDC Mediagroep and [defendant 2].
Legal explanation
4.92.
As considered above, NDC Mediagroep acted unlawfully with regard to certain parts of the publications. The claimed declaratory judgment is therefore imputable. In the opinion of the court, [defendant 2] acted only in his capacity as an employee of NDC Mediagroep. The declaratory judgment to be given therefore only relates to NDC Mediagroep.
Compensation
4.93.
plaintiff 1] and [plaintiff 2] have claimed compensation for damages from the State and to be liquidated according to the law. The court considers that
In principle, NDC Mediagroep is liable for the damage suffered as a result of the unlawful parts of the publications. For this claim to be awarded, it is sufficient that the possibility of damage is plausible. Plaintiff 1] and [plaintiff 2] have argued to that effect that their honour and good name have been damaged. plaintiff 1] and [plaintiff 2] have further stated (for the first time in conclusion of a reply in convention) that it is impossible to estimate what the amount of the damage will be because the negative consequences of the damage could still occur on a daily basis, as long as the publications can be consulted by the public. NDC Mediagroep and [defendant 2] have disputed the existence of any damage and argued that [plaintiff 1] and [plaintiff 2] have not fulfilled their obligation to provide evidence.
4.94.
The claim concerns a claim within the meaning of Section 6:106(1)(b) of the Dutch Civil Code: 'For damage that does not consist of pecuniary loss, the injured party is entitled to compensation to be determined fairly if the injured party (...) has been harmed in his honour or good name (...)'. In this respect, the District Court states first of all that it is clear from parliamentary history that in the drafting of Section 6:106 of the Dutch Civil Code, the legislator had in mind that the court has a great deal of freedom in the budgeting of immaterial damage, whereby the court is not bound by the ordinary rules of obligation to establish and burden of proof.
4.95.
The foregoing implies that the court will not make any reference to the damage assessment procedure, because the court is already able to estimate the amount of the damage. In determining the amount of the damages, the effect of partly unlawful statements in publications in a set of publications should not be considered unlawful statements in those publications. The amount of the damage will therefore be estimated by the court.
4.96.
As the court has already considered, with regard to the publication on the Sikkom.nl website with the headline 'Tenants of [plaintiff 2] have to walk kilometres for expensive and full parking space' of 7 November 2018, it is unlawful that NDC Mediagroep states in the article that the tenant regularly receives intimidating and blackmailing e-mails and [plaintiff 2] e-mails the same tenant several times that he wants to get rid of the tenant because the other occupants of the premises have finished with his behaviour. This statement, which is deemed unlawful, has been made both on the Sikkom.nl website and on the Sikkom Facebook page. It must be assumed that both the Sikkom website and the Sikkom Facebook page have been viewed by third parties and that it is likely that [plaintiff 1] and [plaintiff 2] have suffered some reputation damage as a result and have affected their entrepreneurship to some extent. Moreover, it concerns an attack on the honour and good name that lasts from the moment of the publications until the moment of the rectification. On the other hand, it has not been stated or shown in what way
Plaintiff 1] and [Plaintiff 2] have been adversely affected by this part of the publications, for example by claiming that tenants have departed or potential tenants do not wish to do business with [Plaintiff 1] and/or [Plaintiff 2] because of what has come to their attention through the part of the publication deemed unlawful. In view of the foregoing, the Court deems compensation of € 750.00 to be sufficiently appropriate.
Legal costs
4.97.
The court will order NDC Mediagroep to pay the costs of the proceedings, since the claims of [plaintiff 1] and [plaintiff 2] to rectify part of the publications and the claim for damages (albeit in slimmed-down form) will be awarded. The Court estimates the costs on the part of [Plaintiff 1] and [Plaintiff 2] to date:
- Exploitation costs € 87.01
- court fee € 639,00
- lawyer's salary € 1,086.00 (2 points × rate € 543.00)
Total € 1,812.01
4.98.
Now that only NDC Mediagroep will be sentenced, the court also sees no reason to grant the claimed joint and several liability for the legal costs.
in counterclaim
4.99.
The issue at stake in this case is, in essence, whether to
plaintiff 1] can be accused of unlawful conduct because of the disclosure (by [name A] ) of personal data of [defendant 2] to a third party.
4.100. The court first of all states that it understands the counterclaim in such a way that it is only brought by [defendant 2] against [plaintiff 1]. This is because the counterclaim only mentions '[defendant 2] claims' and 'attribution to [name A] in his capacity as [plaintiff 1]'. For declaring inadmissible
NDC Mediagroep and [plaintiff 2] is therefore not a reason in the opinion of the court. After all, they are not a party to the counterclaim proceedings. Insofar as [plaintiff 1] intended to argue that [defendant 2] in his claim
must be declared inadmissible on the grounds that under the AVG there is a specifically designated course of proceedings open to [defendant 2] with sufficient safeguards, the court will disregard this. The reason for this is that this is not the case in this case. This brings the court to the substantive assessment of the claims.
4.101. From the Facebook message submitted by [defendant 2] as production 11 it appears that [name A] has provided an extract of the basic registration persons (hereinafter: BRP) of [defendant 2] , on which the address details of [defendant 2] can be seen (hereinafter: the personal data), to a third party. Claimant 1] has disputed in this respect that the personal data in question originated from her. The court, however, ignores this. The District Court deems it implausible that [name A], according to [plaintiff 1], independently and independently of [plaintiff 1], requested and obtained a separate extract BRP from [defendant 2], while he is not a party to the proceedings. This is all the more implausible since plaintiff 1 has acknowledged that she did request and obtain an extract BRP from [defendant 2] in the context of the proceedings in convention and has not explained how [name A] obtained a separate extract BRP from [defendant 2]. In view of the defence of [plaintiff 1] in that respect, it was on her way to do so. In view of the foregoing, the District Court therefore assumes that the BRP extract of [defendant 2] that was provided to a third party by [name A] originates from [plaintiff 1].
4.102. The foregoing implies that [plaintiff 1] has processed personal data of [defendant 2] and to the extent that he is a data controller within the meaning of Article 4 sub 7 of the AVG. It has been established that the personal data of [defendant 2] have been provided by [name A] to a third party without the consent of [defendant 2]. The District Court considers as follows.
4.103. Loss of control of personal data, in particular because those personal data become known to third parties without the consent of [defendant 2], can lead to serious adverse consequences for [defendant 2]. This means that [defendant 2] (just like others who are in a similar position) has a great interest in the protection of his personal data and control of the lawfulness of their receipt by third parties. The court, as considered in the foregoing, assumes that [name A] the personal data of [defendant 2] that he has provided to a third party from or through
[plaintiff 1] has obtained.
4.104. 4.104. Claimant 1] has an independent obligation to handle personal data like the present one with care, especially when they have been obtained for the sole purpose of initiating proceedings. In the opinion of the District Court, this obligation should also be understood to mean that [plaintiff 1] arranges (the control of) its administration and work processes in such a way that it is not possible for its (employees) to freely dispose of the personal data of (in this case) [defendant 2] and to provide them or have them provided to third parties. In the opinion of the District Court, this obligation has not been fulfilled, which can also be attributed to [plaintiff 1]. After all, the personal data of [defendant 2] ended up with [name A], who in turn provided the personal data to a third party. In the foregoing, the court also takes into account the provisions of Sections 83, 85 and 146 of the preamble to the AVG and Sections 5(1)(f) and 32(2) of the AVG. By acting in this way [plaintiff 1] has acted unlawfully and contrary to the AVG towards [defendant 2] by violating [defendant 2]'s right to privacy and the right to protection of personal data. Therefore, the declaratory judgment claimed in counterclaim 1. of the petitum of the counterclaim is admissible. The fact that the third party to whom the personal data of [defendant 2] have been provided has indicated not to do anything with the data in question, does not alter the above. After all, [defendant 2]'s right to his personality remains affected and such a statement offers no guarantee whatsoever.
4.105. The foregoing also implies that [defendant 2] on the basis of Article 4.105.
82 AVG is, in principle, entitled to damages to be determined on an equitable basis. Plaintiff 1] has argued in that respect that [defendant 2] has not suffered any damages eligible for compensation, or at least that [defendant 2] has not substantiated this. defendant 2] has argued in writ of summons that the claimed damages consist of the costs he had to incur and the time he had to spend to investigate the conduct of [plaintiff 1] and to prevent or limit the negative effects of this conduct. defendant 2] has further stated in conclusion of reply in counterclaim that he (and his partner) has experienced many negative effects of the actions of [plaintiff 1]. What those negative effects have been [defendant 2] has not specified.
4.106. The District Court is of the opinion that there has been a violation of a fundamental right which, by its nature and in view of its seriousness, leads to a claim for damages. The latter also follows from the AVG. Article 82 AVG provides that a person who has suffered material or immaterial damage as a result of an infringement of the Regulation has the right to receive compensation from the controller or the processor for the damage suffered. Any damage should be compensated and the notion of damage should - in line with the objectives of
the AVG - to be interpreted broadly (Section 146 of the preamble to the AVG), which means that the mere fact that the damage cannot be precisely specified and may be relatively minor does not constitute grounds for rejecting any claim to that effect.
4.107. On the one hand, [defendant 2]'s loss of control over his personal data is permanent. On the other hand, the loss of control is (for the time being) limited to an employee of [plaintiff 1] ([name A] ) and one third. Defendant 2] claims that he has had negative consequences from the actions of [plaintiff 1], but it is not clear what those negative consequences have consisted of. In view of his claim to that effect, it was [defendant 2]'s way to make that clear. Now that [defendant 2] has not done so, but the concept of damages has to be interpreted broadly, and the court deems it plausible that [defendant 2] has experienced negative effects as a result of the actions of [plaintiff 1], for example fear and stress, a compensation of € 250.00 is considered appropriate and fair. Plaintiff 1] will therefore be ordered to pay this amount to [defendant 2].
4.108. The list of names and addresses of third parties to whom [plaintiff 1] has provided the personal data of [defendant 2] claimed by [defendant 2] will be rejected. This is due to the fact that [plaintiff 1] has argued undisputedly that this claim has already been fulfilled, so that there is no interest in granting it.
4.109. The order claimed by [defendant 2] to prohibit plaintiff 1 from providing the personal data of [defendant 2] to third parties will be granted. defendant 2] has an interest in this in view of the content of these proceedings. The court deems the mere promise that [plaintiff 1] will not provide the personal data to third parties insufficient to dismiss the claim. In the opinion of the District Court, the penalty payment claimed to strengthen the requested conviction can also be awarded, on the understanding that it will be limited to a maximum of € 1,000.
€ 5.000,00.
4.110. The court will order [plaintiff 1] as the unsuccessful party to pay the costs of the proceedings. The Court estimates the costs on the part of [defendant 2] to date:
- lawyer's salary € 1,086.00 (2 points × rate € 543.00)
Total € 1,086.00
5 The decision
The court
in convention
5.1.
Condemns NDC Mediagroep, within 24 hours after this judgment has been rendered, to add the text of the Sikkom website on the homepage, in a striking banner or box at the top, and to keep it there for fourteen days, without further comment, in the same font and font size as the headings on the website, but in bold and with the word 'rectification' in red the following text:
RECTIFICATION
On 7 November 2018 an article was posted on this website entitled "Tenants of [plaintiff 2] must walk kilometres for expensive and full parking spaces". The District Court of Noord-Nederland, Groningen location, has ruled that it is unlawful for the article to state that the tenant regularly receives intimidating and blackmailing e-mails and [plaintiff 2] e-mails the same tenant several times that he wants to get rid of the tenant because the other occupants of the property have finished with his behavior,
5.2.
Condemns NDC Mediagroep, within 24 hours after this judgment has been rendered, to add to the text of the Sikkom Facebook page on the home page, in a striking banner or striking box at the top, without further comment, in the same font and font size as the headings on the Facebook page, but in bold and with the word 'rectification' in red the following text:
RECTIFICATION
On this Facebook page an article was posted on 7 November 2018 with the title "Tenants of [plaintiff 2] have to walk kilometres for expensive and full parking space". The District Court of Noord-Nederland, Groningen location, has ruled that it is unlawful for the article to state that the tenant regularly receives intimidating and blackmailing e-mails and [plaintiff 2] e-mails the same tenant several times that he wants to get rid of the tenant because the other occupants of the property have finished with his behavior,
5.3.
Condemns NDC Mediagroep to pay to [plaintiff 1] and [plaintiff 2] (jointly) a penalty of € 1,000.00 for each day or part of a day that it fails to comply with the convictions handed down under rov. 5.1. and 5.2. and stipulates that the amount that NDC Mediagroep can forfeit as a result of those convictions does not exceed € 10,000.00 each time,
5.4.
declares that NDC Mediagroep has acted unlawfully with regard to the parts of the publications considered in this judgment,
5.5.
Condemns NDC Mediagroep to pay damages to [plaintiff 1] and [plaintiff 2] (jointly) of € 750.00,
5.6.
orders NDC Mediagroep to pay the costs of the proceedings on the following grounds
[plaintiff 1] and [plaintiff 2] to date budgeted at € 1,812.01,
5.7.
declares this judgment to be provisionally enforceable, except for rov. 5.4,
5.8.
rejects what is more or otherwise advanced,
in counterclaim
5.9.
declares that [plaintiff 1] has acted contrary to article 6 AVG towards [defendant 2] and has thereby acted unlawfully,
5.10.
condemns [plaintiff 1] to pay to [defendant 2] damages of
€ 250,00 to be paid,
5.11.
prohibits [plaintiff 1] from disclosing [defendant 2]'s personal data to third parties,
5.12.
condemns [plaintiff 1] to pay to [defendant 2] a penalty of
€ 500.00 for each day that she fails to comply with the sentence imposed on her under section 5.11. and stipulates that the amount that [plaintiff 1] can forfeit in penalty payments does not exceed € 5,000.00 each time,
5.13.
orders [plaintiff 1] to pay the costs of the proceedings, on the part of [defendant 2] so far estimated at € 1.086,00,
5.14.
hereby declares that, subject to appeal 5.9. and 5.11., the provisions of this judgment are provisionally enforceable,
5.15.
Rejects what is more or otherwise advanced.
This judgment was handed down by Mr Sanna and publicly delivered on
15 January 2020.1
1type: 741
