Netherlands, Dutch Supreme Court, 24 February 2017 15/03380

Identification of the case

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

• Art. 36 and art. 40 of Wet bescherming persoonsgegevens

• Directive 95/46/EC (Data Protection Directive)

Summary of the case

A Dutch television channel broadcasted an episode of the program ‘Crime Reporter’ which showed the claimant discussing how best to assassinate a competitor with an alleged assassin. The images were made secretly with hidden cameras. The claimant’s last name is kept confidential throughout the program. A book was subsequently written about this case which uses the claimant’s full name. When entering the claimant’s full name as a search term in Google Search, several URL’s are shown which refer to pages which contain information on the aforementioned book. The claimant’s lawyer has contacted Google to request the removal of the URL’s referring to the book, which Google refused. The Court of Appeal rejected the claim. The Court of Appeal followed the CJEU’s reasoning in Google/Costeja that a data subject can request information to no longer be made public through a search engine in accordance with his rights under art. 7 CFREU and art. 8 CFREU, but noted that there was an exception to this rule if there was an overriding public interest (paragraph 81 of Google/Costeja). The Court of Appeal considered that there was an overriding public interest in this case because the claimant had been convicted of a serious offence.

• Civil judicial enforcement

Annulment of the administrative decision, suspensive effect.

The Court has to determine whether Google must remove the claimant’s personal data if it is requested to do so. The Court first refers to Wet bescherming persoonsgegevens (Wbp), which implements Directive 95/46/EC. 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.

In deciding whether Google must remove the claimant’s personal data the Court refers to the CJEU’s reasoning in Google/Costeja. The Court cites paragraph 97 of the aforementioned decision, from which follows that the data subjects fundamental rights in art. 7 and art. 8 CFREU require that the information in question is no longer made available to the public, and that these rights take precedence over the economic interests of the data processor and the interests of the internet users.

The Court considers that it needs to weigh up the alleged public interest in this case, with the claimant’s rights under the CFREU, to determine whether Google must remove the claimant’s personal data. The Court cites the CJEU’s reasoning in Google/Costeja in determining that, even though the information contained within the URL’s is legitimate, the search engine operator is still required to remove links from the results list displayed after a data subject’s name has been entered.

Finally, the Court notes that the Court of Appeal had not motivated the alleged public interest. The mere fact that the claimant had been convicted of a serious crime and there was publicity does not override his fundamental rights under art. 7 and art. 8 CFREU. The Court notes that the Court of Appeal was required to determine the balance between the claimant’s rights and the public interest. Thus, the claimant’s appeal was allowed.

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

According to the Google/Costeja case, articles 7 and 8 of the CFREU provide an individual with the right to request that information relating to him is no longer made available in the search results of a search engine. This right is limited in the case of an overriding public interest. This case concerned the balance between an individual’s rights under the CFREU and the public interest.

• Effectiveness

For the fundamental rights under articles 7 and 8 of the CFREU to be effective they need to be guaranteed under national law. If the national courts were able to override the fundamental rights guaranteed by the CFREU based on a public interest exception, it will need to provide a balance between the rights of the individual and the public interest. Merely stating that there is an overriding public interest does not suffice.

Elements of judicial dialogue

• Dialogue between high court - lower instance court at national level

• CJEU C-131/12, Google Spain

Conform interpretation with EU law as interpreted by the CJEU.

To solve a conflict between different trends of national caselaw.

Judicial reform.