An individual was referred to in a news article as a master swindler and filed suit to explain to the court that article 8 of the European Convention of Human Rights (ECHR) was violated regarding the ‘Right to respect for private and family life’. He claimed the journalist was liable for €40,000 in damages, and also requested a ban on any future publications about him.
A journalist had, via its website, published online articles about the individual. The articles were thereinafter shared by national newspapers. The articles referred to the individual as a master swindler because it accused the individual of selling phone cards to detainees and of scamming them. The articles revealed the individual’s full name, data of birth and a photograph.
The Court of First Instance dismissed the individual’s claims and considered that the journalist processed his data for journalistic purposes. Additionally, the court mentioned that the press has a watchdog function, in this case by warning the public about fraud, and that therefore, the journalist’s freedom of expression outweighed the protection of the individual’s privacy.
The individual then appealed the decision of the Court of the First Instance, and claimed that the journalist’s purpose was to make him look bad and then there was no legal ground for processing his data under article 6 GDPR. Therefore, additionally the article 43 UAVG (the Dutch Implementation Act), which sets forth that the UAVG does not apply to the processing of personal data for exclusively journalistic purposes, was not applicable according to the individual.
The Court of Appeal then explained that the term ‘journalistic’ within the meaning of article 43 UAVG should be interpreted broadly. The journalist’s website was not deemed to make people look bad, but instead to inform the public about fraudulent activities. The processing of the individual’s data was therefore not deemed to fall out of scope of article 43 UAVG. The Court did note that it is prohibited to process criminal data according to article 10 GDPR, unless the exception under article 43(3) UAVG applies, meaning, insofar the processing was necessary for journalistic purposes. The Court deemed this processing of personal data necessary because of the publications concerned reporting on and warning about fraudulent practices. Regarding the applicable legal basis, the court held that journalistic activities are a legitimate interest for processing data under article 6(1)(f) GDPR. It therefore, dismissed the appeal of the individual.
Although many people think the right to privacy is an absolute right, it is important to note that this is not the case. It requires a balancing exercise to decide what right prevails in particular circumstances. It is a positive development that more case law is appearing regarding journalistic purposes, since this is still a grey area under relevant laws like the GDPR.
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