Netherlands, Court of Amsterdam, 15 February 2018 C/13/615516

Identification of the case

• Respect for private and family life (art. 7 CFREU)
• Protection of personal data (art. 8 CFREU)
• Freedom of expression and information (art. 11 CFREU)

• Wet bescherming persoonsgegevens (Wbp)

• Directive 95/46/EC

Summary of the case

The claimant formerly worked as an independent manager in the music industry. He had falsified information on a CV sent to the company for which he was working. He used a false name and cited education that he had not completed. The company reported the claimant, who was prosecuted and subsequently convicted to 80 hours community service. This case was subsequently reported in NRC-Handelsblad, a Dutch newspaper. The report used the claimant’s full name. When entering the claimant’s name as a search term in Google Search, the first URL refers to the NRC-Handelsblad article. The claimant has repeatedly submitted requests to Google and NRC-Handelsblad to remove the link to the article. These requests have been refused by both Google and NRC-Handelsblad.

• Civil judicial enforcement

Compensation for the violation of the individual’s rights by the respondent.

The claimant bases his primary claim on art. 16 Wbp, which implements Directive 95/46/EC. In accordance with art. 16 Wpb the processing of criminal data is prohibited. However, art. 22(1) Wbp states that the prohibition in art. 16 does not apply if the processing is done by bodies charged by law with the application of criminal law. The Court notes that the NRC-Handelsblad article contains the claimant’s criminal data. The Court also considers that Google cannot be classified as a body charged by law to apply criminal law. However, the Court accepts that art. 16 Wpb does not apply to search engines, as it would categorically forbid search engines from linking to URL’s which contain criminal data. This would be an unacceptable restriction on the fundamental function that search engines fulfil in society.

The second claim concerns art. 36 and 40 Wbp. Under art. 36 Wbp, a data subject can request the data processor to remove personal data if it is factually incorrect, incomplete for the purpose of processing, not relevant or processed in violation of a legal provision. Furthermore, under art. 40 Wbp the data subject can object to the processing of data in the interest of his fundamental rights and freedoms.

The Court follows the CJEU’s reasoning in Google/Costeja that the fundamental rights in articles 7 and 8 CFREU outweigh the economic interest of the search engine operator and the legitimate interest of internet users who want to access the data. This may, however, be different in special cases where the is an overriding public interest. The Court thus considers that it needs to balance the public’s interest under art. 11 CFREU, which contains the right to freedom of information, and the claimant’s rights under articles 7 and 8 CFREU.

The Court considers several factors in its evaluation. Firstly, the Court reasons that criminal data is particularly sensitive to privacy, which is why the legislator prohibited the processing of this type of data under art. 16 Wbp. The Court notes that this information could have negative consequences for the claimant’s business and private life. The fact that the NRC-Handelsblad article had several factual inaccuracies was considered of secondary importance by the Court. Furthermore, the Court considers that the article in question was published ten years prior to this case.

Following from the above, the Court considers that there must be a special and compelling public interest in the information being available. The Court notes that the offence was relatively minor, and it has not been proved that it was of public interest. Furthermore, the fact that the claimant had previously supported celebrities in the capacity of his business did not bear any weight, as he had never personally sought publicity. Finally, the Court rejects the argument that the content of the article concerns the actions of the claimant and therefore he must accept the consequences. As the Court points out, the claimant has already suffered the punishment for his actions by performing 80 hours of community service.

The Court concludes that there is no overriding public interest, meaning that this is not a special case under Google/Costeja. Thus, the claimant’s action succeeds.

Role of the Charter and role of the general principles on enforcement

This case concerns the balance between the rights to privacy and protection of personal data as guaranteed under articles 7 and 8 CFREU, and the right to freedom of information as guaranteed under art. 11 CFREU. This case highlights that the rights to privacy and protection of personal data usually outweigh the right to freedom of information, unless there is an overriding public interest.

• Proportionality

The Court considered whether the infringement of the claimant’s right to privacy and right to data protection was proportionate to the public interest of the information being available. The Court determined that in this case, there was not an overriding public interest.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• CJEU C-131/12, Google Spain

Conform interpretation with EU law as interpreted by the CJEU.