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Missed Opportunity: Dutch Supreme Court copy-pastes Google Spain Judgment – Jens van de Brink

In a judgment dated 24 February 2017 the Dutch Supreme Court followed the grounds (of: considerations) of the Google Spain judgment of the EU Court of Justice regarding the right to be forgotten. 

Although the Dutch court must adhere to the judgments of the EU Court of Justice, this is nevertheless a missed opportunity. Particularly because this way established case law of another European court, the European Court of Human Rights (ECHR), and of the Dutch Supreme Court itself is brushed aside very easily, without saying anything on the subject.

This is the appeal in cassation against the judgment in which, as far as we are aware, the Google Spain judgment was applied by a national court for the first time in the EU.

In May 2012 the appellant played a quite remarkable role in an episode of the programme ‘Misdaadverslaggever’ of Peter R. de Vries, a well known Dutch crime reporter.

In this episode footage was shown in which [the appellant] discussed with a(n alleged) contract killer (hereinafter to be referred to as A) the best way of liquidating or having liquidated a competitor of [appellant] in the escort sector. The footage was recorded surreptitiously by A with a ballpoint pen in which a camera was installed. In the footage that was broadcast in the programme the [appellant] was shown extensively and recognizably, and no image or sound distortion was used. He was not mentioned by his full name but by his first name plus ‘van’ and the first letter of his last name.

The man was convicted to six years’ imprisonment for an attempted provocation of a contract killing. He appealed against this conviction.

Next, the man requested Google to delete the links that referred to websites containing information about his conviction. Google refused to fully comply with the request of the convicted criminal, whereupon he instituted preliminary proceedings against Google.

The court (of: preliminary proceedings judge) rejected his claims. In its judgment the court gave its own interpretation of the right to be forgotten from the Google Spain judgment, finding that

the [Google Spain] judgment does not intend to protect individuals against all negative communications on the Internet, but only against ‘the prolongued pursuit by ‘irrelevant’, ‘excessive’ or ‘unnecessarily defamatory’ communications.

However, the criteria ‘prolongued pursuit and ‘unnecessarily defamatory’ cannot be found in the Google Spain judgment. By adding these elements it seems that the court has given the Google Spain judgment some nuance. And many welcomed this approach, since the Google Spain judgment seems to have been formulated from a privacy point of view only and the importance of the freedom of expression was rather overlooked.

The Court of Appeal linked up (aligned, agreed, held, vind ‘linked up’ niet zo mooi) with the judgment in the first instance and also rejected the claims, considering that

In brief, this case comes down to the fact that [the appellant] is prosecuted for a serious crime  that was committed very recently, that he was convicted for this crime in the first instance, and that he is not entitled to being indemnified against search results as a result of which the public – to the extent that it is aware of his full name, while the appeal in his criminal case is still pending, and there is no question of a relevant lapse of time – might connect him to this crime.

The Court of Appeal furthermore agrees with the court in first instance that the auto-complete function of Google, which suggests ‘peter r de vries’ when the name of the escort service boss is typed, is not unlawful. The addition is generated automatically on the basis of, amongst other things, the number of times that users have searched on the basis of particular search terms. The public has a legitimate interest in being informed about the appellant. Moreover, apparently the people who typed his name on Google already knew his full name so that “the search results generated with the auto-complete addition do not yield more information about [the appellant] than will be obtained without this addition”.

But the Supreme Court has quashed the judgment of the Court of Appeal. The Supreme Court points out that the EU Court of Justice simply has stipulated in the Google Spain judgment that

the fundamental rights of an individual as meant in Articles 7 and 8 of the Charter (the right to respect for private life and the protection of personal data), as a general rule, override, and therefore take precedence over, the economic interest of the operator of the search engine and the legitimate interest of internet users potentially interested in having access to the search results concerned. In specific cases this may be different, depending on “the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life”.

So, the interest of individuals in (protection of) their privacy, as a general rule, prevails over the interest of the internet users in information and over the economic interest of the operator of the search engine. This will only be different in specific cases. Also if the publicity (on the source site) on the conviction of the appellant is legitimate, this does not mean that the claim against the search engine to delete search results must be rejected “even, as the case may be, when its publication in itself on those [web] pages is lawful”. In clarification of this: the right to be forgotten only extends to search engines and not to media.

The Supreme Court has established that the Court of Appeal did not consider at all the interest of the public to obtain information about the conviction of the appellant while using the appellant’s full name when performing a search, and neither whether the appellant, for instance, plays a role in public life and, if so, which role. According to the Supreme Court, the mere fact that the appellant was convicted in the first instance of a serious crime and that this generated publicity is insufficient to reject his claim. The Supreme Court furthermore points out that the Court of Appeal has insufficiently taken into account the interest of the appellant, including that his conviction is not irrevocable.

The conclusion is that the Supreme Court has fully followed the grounds (of: considerations) of the Google Spain judgment.

Could the Supreme Court have ruled differently? Yes indeed. The Supreme Court could at least have conveyed some doubt, something that is quite often mentioned in professional literature (for instance elaborately here, and on our own blog here) in response to the Google Spain judgment. After all, it is established case law of the ECHR and the Supreme Court that there is no internal order of precedence between the right to privacy on the one hand, and the right of the freedom of expression and the right to receive information (the freedom of information) on the other hand. The Google Spain judgment has ended this balance far too easily. It would have been to the Supreme Court’s credit if it would in any case have gone into this discussion, which could not have escaped its attention. Incidentally, in his opinion in this case, the procurator general to the Supreme Court(Langemeijer) did point out the ongoing discussion about the Google Spain judgment. The Supreme Court has not followed his advice – rejection of the appeal in cassation against Google Inc.

This post originally appeared on the Media Report blog and is reproduced with permission and thanks.

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