Partner - Van Kaam
Defamation, Privacy and Data Protection
Contributor: Remco Klöters (Partner, Van Kaam)
Slander and defamation are punishable under the Dutch Criminal Code, however, someone who commits and act of slander or defamation is also committing a wrongful act under the Dutch Civil Code. As a member of the Council of Europe, the Netherlands is a party in the European Convention on Human Rights (‘ECHR’). The ECHR provides both the right to freedom of expression (article 10) as well as the right to respect for private life (article 8.1). Part of the private life is also one’s reputation. (ECHR 15 November 2007, no. 12556/03 (Pfeifer/Austria)). Defamation or slander can be an infringement to the right to private life.
The Dutch Criminal Law seeks to protect the moral integrity of a person by forbidding slander and defamation (articles 261 and 262 of the Dutch Criminal Code). Both slander and defamation consist of an intention to impugn the honor or reputation of another person by accusing a person of a fact in the public eye. The accusation has to be severe, for instance accusations of crimes or other morally objectionable behavior. Knowing the information you publicize is untrue is slanderous, while information you might deem true, but is intentionally impugning the honor or good name is considered a defamation. Prosecution can only take place if the victim of the slander or defamation files a report with the police. Prison sentences are possible, but are rarely imposed, fines and community service are the most regular punishments.
Slander and defamation are also considered a wrongful act in the Dutch Civil Code (article 6:162 DCC). In civil proceedings, a judge has to decide if either the freedom of expression or the right to privacy / protection of one’s reputation has to prevail. In the Netherlands, the statute of limitation for bringing a claim pertaining to an unlawful act is five years after the day that the injured party became aware of the damage and the person responsible for the damage (art. 3:310 DCC). For some remedies though judges demand a more quick response, especially when a plaintiff is looking for rectification.
The burden of proof with unlawful act claims normally lies with the claimant. He or her should state why an act was unlawful and what damage is done. However, since it is hard to prove that statements are not true, the burden of proof can be reversed, such that it can be up to the defending party to prove the truth of the statements, by proving that the accusation was supported by the available (factual) evidence, or that he or she did not make the accusation lightly (see ECHR 15 February 2005, no. 68416/01 (Steel & Morris/VK)). The claimant is nonetheless obliged to set out what statements are defaming and or slanderous and why (Hof ‘s-Hertogenbosch 23 February 2011, ECLI:GHSHE:2011:BP3921).
Claimants can claim various remedies. These remedies include monetary compensation, removal of the statement(s) from online sources, an injunction prohibiting the repetition, republication or broadcasting of the statement, rectification of the statement, etc. In the most obvious cases it could also be possible to get a preliminary injunction against an intended statement, publication or broadcast, but it is more common to look for remedies after the publication. Monetary remedies are limited to what is deemed to be proportionate to the infringement (ECHR 15 June 2017, no. 28199/15 (Independent Newspapers/Ireland)). There is no maximum level of financial compensation in place.
As a member of the Council of Europe, the Dutch judges are also bound by European rules. The ECHR articles contain a test for cases in which the respective fundamental right is to be overridden by another competing fundamental right. Although a judge would strictly test whether there are reasons to interfere with the freedom of expression of the defendants (article 10 ECHR), this test would not be any different under article 8 ECHR. There is no hierarchy between these rights and they are equally as fundamental, so therefore it is irrelevant whether an interference with article 10 or with article 8 is being judged. (ECHR 16 June 2015, no. 64569/09 (Delfi/Estonia) and Dutch Supreme Court 18 January 2008, NJ 2008/275 (Van Gasteren/Hemelrijk)).
When a Dutch court has to decide whether an interference with the freedom of expression is necessary in order to guarantee the right to protection of the reputation, it has to perform a test whether the claims meet the conditions of article 10 ECHR. These conditions are whether the interference:
Since the sections of the Dutch Civil Code (‘DCC’) – and more specific: the Dutch rules about tort – are regarded to be ‘prescribed by law’ and the protection of the reputation of others is set out as a legitimate aim in article 10.2, the most important test is whether an interference is necessary in a democratic society.
The ECHR explained the concept of a democratic society in its landmark Handyside case (ECHR 7 December 1979, NJ 1978/236). It deems this freedom to also be applicable to information and ideas that offend, shock or disturb. In order to deem a particular interference necessary in a democratic society, there needs to be a ‘pressing social need’. That is more compelling than ‘admissible’, ‘ordinary’, ‘useful’, ‘reasonable’ or ‘desirable’. (ECHR 26 April 1979, NJ 1980, 146 (Sunday Times)) The more severe an interference is (i.e. criminal punishment), the stronger the pressing social need to legitimize the interference has to be.
Traditionally the ECHR requires a strong pressing social need for interferences in cases concerning political speech and matters of public interest. The ECHR wants to prevent a chilling effect on politicians and journalists who need to have the freedom to express themselves in politics as well as about matters of public interest.
Another relevant aspect is that of ethics and good faith. The ECHR requires authors and media to act in good faith and on an accurate factual basis and provide reliable and precise information in accordance with the ethics of journalism. (ECHR 21 January 1999, no. 29183/95 (Fressoz & Roire/France)). In the Dutch courts, this means that journalistic principles (in addition to legal principles) are relevant in judging an alleged wrongful act.
Since all measures taken against the media and/or journalist after a violation of the fundamental right to the protection of privacy or reputation, in themselves characterise an interference with their right to freedom of expression, and since both fundamental rights are equally respected, the ECHR and the Dutch Supreme Court prescribe a balancing exercise to decide whether such interference is necessary in a democratic society. (ECHR 24 June 2004, no. 59320/00 (Von Hannover/Germany 1)) For this balancing exercise the Court grants the courts of the member states a wide margin of appreciation. (ECHR 7 February 2012, no. 40660/08 (Von Hannover/Germany 2))
As a member of the European Union, the Dutch privacy rules are governed by the EU General Data Protection Regulation (GDPR). The regulation applies to the processing of personal data wholly or partly by automated means and the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system (article 2 GDPR). Personal data means any information relating to an identified or identifiable natural person (article 4 GDPR). Aside from the direct effect of the regulation, it is also implemented in Dutch national law for further regulation through the Uitvoeringswet AVG (UAVG). The Dutch implementation of the GDPR has expanded the scope of the regulation to include personal data processing that does not fall under the scope of EU regulation (article 2 UAVG). There are a few exceptions, regarding to processing personal data in the context of the Election Act and the Population Register Act (as well as the now revoked Referendum Act).
Before the GDPR came into force, the applicable law was the Wbp (Wet Bescherming Persoonsgegevens). The rules where not very different from those deriving from the GDPR. What is new is that the rules are not only applicable to controllers and processors based in the EU, but also to all processors and controllers who process personal information of EU citizens.
One of the base principles of the GDPR is that personal data shall be processed lawfully, fairly and in a transparent manner (article 5 GDPR). This means that processing of personal data is only legal when it’s done with either permission of the data subject for specific purposes, when processing is necessary for the execution of an contract, necessary for compliance with a legal obligation or to protect vital interest of the data subject or necessary for the performance of a task carried out in the public interest. Processing of special categories of personal data such as racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation know a stricter protection regime than other personal data. This is also the case for criminal records.
Not only is consent required for processing data, the processing itself is also bound by specific rules (set out in article 6 GDPR). For example, the data may only be used for the purposes as explicitly described prior to the processing and only the data necessary for those purposes may be processed. In addition, the data may not be stored longer than necessary and if possible with as little identification as possible. The controller is also obliged to make appropriate technical and organizational measures to ensure the protection of the data.
Data subjects have multiple rights under the GDPR. They have a right of access to the data that is stored and processed combined with a right to rectify the information (article 13 GDPR). The regulation also grants a right to erasure, or ‘right to be forgotten’ (article 17 GDPR), such that data subjects can demand that all of their personal data will be erased by the controller. Another important right is the right to data portability, by which a data subject must be able to transfer his or her personal data from one service to the other. While the main responsibility lies with the actual data controller, they frequently make use of third-party services to process the data. They have to ensure that these parties are also GDPR compliant (article 28 GDPR). This means that all data controllers and data processors sign Data Processing Agreements. Controllers and processors also have to make sure the data is subject to appropriate security measures (article 32 GDPR), and in case of a data breach, are obliged to notify the supervisory authority no later than 72 hours after becoming aware of the breach.
Compliance with the regulation is being monitored by the supervisory authority. In the Netherlands, this is the Autoriteit Persoonsgegevens (AP). The AP is an independent organization tasked with all matters involving compliance monitoring. The AP is actively monitoring companies, public institutions and other data controllers. It is also a place where data subjects can report non-compliant controllers, and controllers are also obligated to report data leaks at the AP. The AP can impose fines when privacy regulations are being violated. These administrative fines can be up to 20 million euros or 4% of the total worldwide turnover in case of an undertaking (article 83 GDPR).
Chapter VIII of the regulation provides for remedies, liability and penalties. It gives the data subject the right to lodge a complaint with a supervisory authority, for instance. It also gives a right to effective judicial remedies to either a controller or processor as to the supervisory authority as well. Where the supervisory authority has a right to impose fines, any person who has suffered material or non-material damage as a result of infringement of the regulation, has a right to compensation. For the determination of the amount to be awarded by way of compensation, a Dutch judge has to look at the Dutch legal principles and case law, in order to determine a proportionate amount of compensation.
Contributor: Remco Klöters (Partner)
Van Kaam advocaten
1017 WT Amsterdam
The material in this Guide is for general information only and does not constitute legal advice.
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