Rb. Rotterdam - ROT 20/3286
|Rb. Rotterdam - ROT 20/3286|
|Court:||Rb. Rotterdam (Netherlands)|
|Relevant Law:||Article 82(1) GDPR|
Recital 146 GDPR
6:106(b) Dutch Civil Code (Burgerlijk Wetboek)
|National Case Number/Name:||ROT 20/3286|
|European Case Law Identifier:||ECLI:NL:RBROT:2021:6822|
|Original Source:||Rechtspraak.nl (in Dutch)|
The Dutch Court of Rotterdam (Rb. R'dam) held that the plaintiff suffered immaterial damages due to the fact that medical data was stored and processed by the defendant for ten years after denying several request for erasure of the data made by the plaintiff. The unlawful processing constituted in a breach of the right to respect for private and family life of the plaintiff. The Court deemed such a breach a harm in person as stated in Article 6:106 (1)(b) of the Dutch Civil Code, which is a legal ground for compensation of immaterial damages.The duration of the processing and the fact that the plaintiff made several request for the erasure of the data were taken into account to determine the compensation sum.
The plaintiff made a request for the erasure of her medical data from her file in 2014 and another request in 2017. Both were denied by the defendant. In 2018 however, the defendant revoked this decision and deleted the data after all. The plaintiff claimed to be entitled to compensation for immaterial and material damages of at least 25.000 euros based on the GDPR.
Can compensation for material and immaterial damages be awarded to the plaintiff for a violation of the GDPR because the defendant did not erase the plaintiff's data?
The Court held that the plaintiff is entitled to compensation for immaterial damages because the defendant breached the right to respect for private and family life of the plaintiff by storing and processing the data. The Court deemed such a breach a harm in person as stated in Article 6:106 (1)(b) Dutch Civil Code which is a legal ground for compensation of immaterial damages.
To determine the compensation sum, the Court took into account that the records were stored for about ten years and that the plaintiff had made several request for erasure of the data. The Court found it sufficiently plausible that during these ten years, several people and authorities could have taken note of the data without being entitled to do so. Therefore, the plaintiff suffered immaterial damages. Considering in another Dutch case (ECLI:NL:RVS:2020:898), a sum of 500 euros was granted for unlawful processing of data for a short period of time, the Court held that a sum of 2.500 euros should be granted to the plaintiff.
The Court held that the plaintiff was not harmed in her career or suffered a loss of income due to the processing of the records. Therefore, the Court rejected the plaintiff's request for compensation of material damages.
The judge does not specify which article of the GDPR was violated. However, considering the plaintiff made a request for the removal of her data, it is likely that Article 17 GDPR was violated.
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English Machine Translation of the Decision
The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.
Body Court of Rotterdam Date of judgment 12-07-2021 Date of publication 19-07-2021 Case number ROT 20/3286 Jurisdictions Administrative law Special characteristics First instance - single Content indication In the opinion of the court, the applicant is entitled to compensation for non-material damage since the defendant has acted in violation of the GDPR by storing and processing the reports containing the applicant's personal data and thereby the right to respect for the privacy of the applicant. the applicant has infringed. With regard to the amount of compensation to be determined, it is important that the privacy-sensitive personal data have been kept by the defendant for a period of approximately ten years, despite various requests from the applicant for the destruction of the data. The court considers it sufficiently plausible that in those ten years the personal data of the applicant were processed and that several persons and/or bodies were able to take cognizance of the content without being entitled to do so and that the applicant suffered immaterial damage on that basis. The court has assessed the damage, taking into account the decision of the Division of 1 April 2020 (ECLI:NL:RVS:2020:898), in which compensation was awarded of €500 for a short-term unlawful processing of medical data, and the length of the period that the data has been unlawfully stored and processed, at € 2,500. Locations Rechtspraak.nl Enhanced pronunciation Share pronunciation print Save as PDF Copy link Statement Court of Rotterdam Administrative law case number: ROT 20/3286 judgment of the single chamber of 12 July 2021 in the case between de [name of applicant], in [place of applicant], applicant, and the Municipal Executive of Rotterdam, authorized representative: mr. J.C. Avedisian. Process sequence By application dated 15 June 2020, the applicant requested compensation under the General Data Protection Regulation (GDPR). Defendant has filed a statement of defence. The applicant has submitted further documents. The hearing took place on 3 June 2021. The Applicant appeared. Defendant was represented by his attorney. Considerations 1. On 18 December 2014, the applicant requested the defendant to remove medical information from its file. By decision of 6 March 2015, the defendant rejected this request. By decision of 24 July 2017, the defendant also rejected the applicant's request to reconsider this decision. By decision of 7 February 2018, the defendant withdrew the latter decision and informed the applicant that all medical data from 2008 and 2009 will be removed from its file. By decision of On September 17, 2018, the defendant informed the applicant that it would also remove the applicant's medical data from other files. 2. In the statement of defence, the defendant stated that with the withdrawal of the decision of 24 July 2017, the illegality of this decision was given. The court sees no reason to rule otherwise. At the hearing, the defendant argued that the illegality of the revoked decision cannot be assumed as the exact reason for this is unknown, but with that single argument, the defendant did not substantiate the applicant's substantiated claim that the defendant had unlawfully processed her medical data. sufficiently contradicted. 3.1. Pursuant to Article 82(1) of the GDPR, anyone who has suffered material or non-material damage as a result of an infringement of this Regulation has the right to receive compensation from the controller or processor for the damage suffered. 3.2. In its decision of 1 April 2020 (ECLI:NL:RVS:2020:898), the Administrative Jurisdiction Division of the Council of State (the Division) considered that when exercising the right to compensation, as laid down in Article 82 of the GDPR, should be taken into account recital 146 of the preamble to the GDPR. It states, inter alia, that the controller or processor must make good any damage that a person may suffer as a result of processing that infringes this Regulation. The concept of damage must be interpreted broadly in the light of the case law of the Court of Justice of the European Union (the Court), in a way that fully reflects the objectives of this Regulation. It is also stated that those involved must receive full and actual compensation for the damage suffered by them. Furthermore, it follows from settled case-law of the Court that damage to be compensated must be real and certain. 3.3. According to settled case law of the Division, for the assessment of a request for compensation for non-material damage, a link is sought with civil compensation law. 3.4. Pursuant to Article 6:106, opening words and under b, of the Dutch Civil Code (BW), the injured party is entitled to compensation to be fairly determined for loss that does not consist of financial loss if the injured party has suffered physical injury, in his or her honor or reputation has been damaged or otherwise damaged in his person. 4.1. In the opinion of the court, the applicant is entitled to compensation for non-material damage since the defendant has acted in violation of the GDPR by storing and processing the reports containing the applicant's personal data and thereby the right to respect for the privacy of the applicant. the applicant has infringed. An infringement of the applicant's privacy can be regarded as an infringement of the person as referred to in Section 6:106(1) and under b of the Dutch Civil Code, which entitles the holder to compensation for non-material damage. 4.2. The applicant claims to have suffered at least € 25,000 in damage as a result of the defendant's actions. 4.3. With regard to the amount of compensation to be determined, it is important that the privacy-sensitive personal data have been kept by the defendant for a period of approximately ten years, despite various requests from the applicant for the destruction of the data. The court considers it sufficiently plausible that in those ten years the personal data of the applicant were processed and that several persons and/or bodies were able to take cognizance of the content without being entitled to do so and that the applicant suffered immaterial damage on that basis. The court estimates the damage, taking into account the provisions in 4.1. the aforementioned decision of the Division (in which compensation was awarded of € 500 for a short-term unlawful processing of medical data) and the length of the period that the data was unlawfully stored and processed at € 2,500. 4.4. The court finds that the claim of the applicant that her career has been damaged by the unlawful storage and processing of her data and that she has suffered loss of income as a result, is not plausible. The request for material compensation is therefore rejected. 5. Since the court partially grants the request for damages, the court rules that the defendant reimburses the applicant for the court fee paid. 6. There is no reason for an order to pay costs. Decision The court: - partially grants the claim for damages; - orders the defendant to pay compensation for the applicant's damage, set at € 2,500; - determines that the defendant reimburses the applicant for the court fee of € 178 paid; - rejected the remainder of the request. This decision was made by mr. J. de Gans, judge, in the presence of mr. T. Dijkhoff, clerk of the court. The ruling was made public on July 12, 2021. The clerk is unable to sign The judge is unable to sign Registrar Judge A copy of this ruling has been sent to the parties at: Remedy An appeal can be lodged against this decision with the Administrative Jurisdiction Division of the Council of State within six weeks of the date on which it was sent.