by Thomas van Essen, SOLV Advocaten

In May this year, the European Court of Justice introduced the ‘right to be forgotten’ in the Costeja judgment. In a decision of 18 September 2014, the Amsterdam District Court imposed limits on this right to be de-listed, ruling that it cannot be invoked by criminals.

The underlying case involved Arthur van M., an escort agency owner exposed on national television by Peter R. de Vries while plotting a contract hit. Arthur van M. was initially convicted of attempted solicitation of murder for hire but released pending the appeal.

The escort agent now wants Google to remove various links to websites containing information about his conviction.

The Amsterdam District Court rejected the claims and substantiated its rejection as follows in Ground 4.11:

(…)
Now the Claimant has to bear the consequences of his actions. It is an established fact that the commission of a crime may generate highly negative media coverage and may leave traces, including online, that may well be difficult to erase. The purpose of the Costeja judgment is not to protect individuals against all negative reports on the Internet, but only against ‘being haunted’ for a long time by reports that are ‘irrelevant’, ‘excessive’ or ‘unnecessarily defamatory’.

A person’s conviction for a serious crime such as this one and the ensuing negative publicity in general constitute permanently relevant information about this person. Any unfavourable characterisations in that context will be labelled ‘excessive’ or ‘unnecessarily defamatory’ only in highly exceptional cases.
(…)

In its conclusions, the Amsterdam District Court fleshes out the ECJ’s rather broad definition of the ‘right to be forgotten’. The Costeja judgment stipulates that any request for the removal of information must be assessed on the basis of whether that information, having regard to all the circumstances of the case, is inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes of the processing. In the Amsterdam District Court’s interpretation, negative publicity aroused by a major crime effectively provides permanently relevant information about the perpetrator. Requests for the removal of such information will be granted only in exceptional cases.

It should be noted here that the Amsterdam District Court ruled in preliminary relief proceedings in a case involving specific facts. Other facts and circumstances may lead to different conclusions, which the Amsterdam District Court also acknowledged. Perpetrators may succeed in having information removed if the serious crime they committed is brought up again apparently for no other purpose than to harm the person involved or if objective news reporting is reduced to ‘name calling’ (Ground 11).

In any event, whether the Amsterdam District Court’s interpretation of the Costeja judgment is correct is open to debate.

Meanwhile the Article 29 Data Protection Working Party (WP29) seeks to provide more clarity about the potential obligation to remove information. In a recent press release, the WP29 announced the introduction of a ‘tool box’ for search engines to ensure a coordinated and consistent approach to the handling of requests for the removal of information. Although it is not yet entirely clear what the tool box will comprise, the press release refers to a network of dedicated contacts to develop common case-handling criteria. In the WP29’s view, this network will provide:

• a common record of decisions taken on requests for the removal of information, and
• a dashboard to help identify similar cases as well as new or more difficult cases.

The Amsterdam District Court’s decision (in Dutch) is available here and the WP29 press release can be read here.

 

» Many thanks to Thomas van Essen from SOLV Amsterdam for providing this article