Dutch Google Spain ruling: More Freedom of Speech, Less Right To Be Forgotten For Criminals

Last week, the Court of Amsterdam in preliminary relief proceedings got a chance to shed light on the consequences of the much-discussed Google Spain (or Costeja) judgment of the Court of Justice EU in the Netherlands. As far as we are aware, this is the first time that a national court was asked to apply the Google Spain ruling. The proceedings in Amsterdam centred on one of the many ‘right to be forgotten’ requests Google received after the Google Spain judgment. This request was made by the owner of an escort agency who was convicted to six years’ imprisonment in 2012 for ‘attempted incitement of contract killing’, which conviction is still under appeal. He had been caught on camera by Peter R. de Vries – a well-known Dutch crime journalist, who got international attention for his coverage of the Nathalie Holloway case. The man wanted to have links removed to online publications linking him to the crime he had committed. Although Google was willing to remove part of the search results he complained about, the search engine refused to comply fully with his request. The complainant decided to bring suit in order to have other search results removed as well.

Where the Court of Justice of the European Union (“CJEU”) seemed to suffer from a slight case of privacy tunnel vision, the Court of Amsterdam displayed a more down-to-earth approach and arguably paid more attention to the freedom of speech issues concerned with these kinds of requests. The Court rejected the claims of the owner of the escort agency (in Dutch).

‘Unnecessarily Defamatory’
The interesting thing about the judgment is how the Amsterdam court reached this conclusion. The Dutch Court briefly summarized the test provided by the CJEU, giving it a personal twist:

The [Google Spain] judgment does not intend to protect individuals against all negative communications on the Internet, but only against ‘being pursued’ for a long time by ‘irrelevant’, ‘excessive’ or ‘unnecessarily defamatory’ expressions.

The elements ‘being pursued for a long time’ and ‘unnecessarily defamatory’ are not quotes from Google Spain. Apparently the Dutch Court read those element in the CJEU decision. The interpretation by the Dutch court provides a more balanced view than that of the Luxembourg Court, because it does not imply that privacy outweighs free speech and the freedom of information (which the CJEU literally considered in the Google Spain decision).

The judge added that it will be hard for a convict of a serious crime to meet these criteria:

The conviction for a serious crime such as the one at issue and the negative publicity as a consequence thereof, in general provide information about an individual that will remain relevant. The negative qualifications that may be involved will only be ‘excessive’ or ‘unnecessarily defamatory’ in very exceptional cases, for instance when the offense committed is brought up again without a clear reason, apparently for no other purpose than to damage the individual involved, if reporting is not factual but rather a ‘slanging-match’.

It was clear to the Court of Amsterdam that the request of the complainant did not meet these criteria.

Full Last Name and Auto-Complete Function
The Dutch Court also confirmed that it is common practice in Dutch journalism to anonymize convicted persons by only mentioning the first letter of their last name. Nevertheless, the Court underlined that this does not mean that an enforceable standard exists:

Furthermore, the claimant apparently assumes that there is an enforceable standard which obliges journalists – including, according to the claimant, search engines like Google Search – under all circumstances to anonymize a suspect or a convict of a criminal offense. However, such an enforceable standard does not exist.

Therefore, the fact that some Google search results contain the full name of the claimaint, while the media abbreviated his last name, did not persuade the Court to have these links removed for this reason alone.

Neither does the Court consider it illogical or unlawful that the auto-complete function of Google suggests ‘peter r de vries’ as soon as the name of the claimant is typed in. Google automatically makes these suggestions on the basis of earlier search requests. Apparently, Google users still search for the claimant’s name in combination with Peter R. de Vries relatively often. Furthermore, the Court does not share the opinion that through the auto-complete function internet users would be able to find out the full name of the claimant.

Notification of removed results
As mentioned above, Google did remove a number of search results following complainant’s request. In this regard, claimant also objected to the following notice, which Google displays when you search for his name: “Some results may have been removed on the basis of European data protection legislation. More information.” Google contended that since June 2014 it includes this notification in all search requests for a personal name, unless “it is the name of a well-known person”. We were not aware of this policy and we wonder how it is applied exactly. When searching for our own name on Google (of course purely for editorial purposes), even our first and last name appeared to be sufficiently famous not to show the notification. The question is if we should feel flattered or whether Google does not apply very strict requirements as to what constitutes “well-know” (or it does not strictly uphold its own policy).

The Court rejected the objections because Google’s notification does not create incorrect suggestions.

Sufficient urgency
The Court also questioned if the claimant had sufficient urgency to bring its suit in preliminary relief proceedings. He alleged that Google’s search results hindered him in his business life, as well as his private life. According to the Court, this was not sufficiently substantiated. The Court observed in this regard that people in the claimant’s immediate circle would already be aware of his criminal past:

It can provisionally be assumed that relatives, friends and acquaintances of the claimant know what fact(s) the claimant is suspected of and for which fact(s) he was convicted by this court. After all, in the program “Misdaadverslaggever” of Peter R. de Vries of 27 May 2012 the claimant was shown on television in great detail. In this program, footage that had been surreptitiously recorded was shown in which the claimant, mentioned by his first name and the first letter of his last name, discussed with an alleged contract killer the best way of liquidating or having liquidated a competitor of the claimant in the escort sector. In this footage the claimant was shown extensively and recognizably, and no image or sound distortion was used. Subsequently, the claimant was in prison for quite a while. Under these circumstances it cannot be understood, without further explanation of the claimant – which was not given – that the claimant, who has now been released to await his appeal, is seriously hindered in his private life as a result of the actions of Google Inc.

Conclusion
All in all, this ruling is good news, because it provides a more workable interpretation of the Google Spain judgment and the right to be forgotten under Dutch law, justifiably leaving a lot more room for the freedom of speech. However, the question is whether this case will actually have an impact. We wonder what the outcome would have been if the case did not concern such a serious crime. In this respect, we leave you with a small reprimand of the Court (which ties in nicely with the Springer judgment of the ECHR):

The claimant now has to bear the consequences of his own actions. One of the consequences of committing a crime is that a person can be in the news in a very negative way and this will also leave its tracks on the Internet, maybe even for a very long time.

This post was written by Joran Spauwen and Jens van den Brink of Kennedy Van der Laan Attorneys-at-law.