Dutch surgeon successfully invokes the right to be forgotten
A Dutch surgeon has successfully invoked the right to be forgotten in a Dutch civil court proceeding.
The Dutch civil court ordered Google to delete certain links in the search results that appeared when the name of the surgeon was Googled.
It particularly concerned search results that linked to websites containing an unofficial blacklist of healthcare professionals on which the surgeon was listed with her full name, picture, her professional registration number (BIG-nummer) and a reference to the disciplinary measure that had been imposed on her by a disciplinary tribunal. The surgeon claimed that these links negatively affected both her professional and private life.
Google rejected the surgeon’s request to delete the search results. From the judgment it appears that the surgeon first tried to involve the Dutch Data Protection Authority. However, the Dutch Data Protection Authority did not see cause to intervene in this respect. The Dutch Data Protection Authority stated that the information available via the search results was not evidently incorrect nor outdated (as the probationary period of the conditional disciplinary measure imposed on the surgeon had not yet ended) and only related to the professional life of the surgeon (and not her private life). According to the Dutch Data Protection Authority, it is important for future patients to have access to this type of information. The surgeon’s argument that this information is available in the official register for healthcare professionals (the BIG register), was not considered relevant by the Dutch Data Protection Authority as it deemed that the average patient did not consult this official register when choosing a healthcare professional.
The Dutch civil court, however, granted the surgeon’s claim based on her right to be forgotten and ordered Google to delete the said search results.
The surgeon (inter alia) invoked both article 10 and 17 of the GDPR.
Interesting to note is that the GDPR was not (yet) applicable when the surgeon initiated the court proceeding, but was applicable when the Dutch civil court rendered its judgment. In connection herewith, the Dutch civil court’s judgment is based on the GDPR.
Article 10 GDPR governs the processing of personal data relating to criminal convictions and offences, which is only allowed under certain conditions. The Dutch civil court follows Google’s position that information on disciplinary convictions does not qualify as personal data relating to criminal convictions and offences within the meaning of article 10 GDPR and hence, rejected the surgeon’s claims on this basis.
Article 17 GDPR governs the much-discussed right to be forgotten.
With reference to the Google Spain/Costeja judgment of the European Court of Justice and an earlier judgment of the Dutch Supreme Court, the Dutch civil court ruled that the right to privacy of an individual should generally prevail over the commercial interests of a search engine operator and the right to information of the public. In view hereof, the operator of a search engine may be obliged to delete certain search results if these are incorrect or, in view of the circumstances of a specific case, inadequate or irrelevant. Further, search results may have to be deleted in case important and legitimate reasons in relation to the personal situation of the individual concerned oppose to publication of certain search results, even in the event that the publications are correct and legitimate.
In the matter at hand, the Dutch civil court ruled that the right to privacy of the surgeon in the circumstances at hand prevailed over the economic interests of Google and the right to information of internet users even though the reference to the disciplinary conviction of the surgeon was correct.
In this respect, it inter alia considered the following factors as relevant: (i) the information on the surgeon’s conditional disciplinary conviction is (already) publicly available in the official BIG-register (the register in which all Dutch healthcare providers are listed); (ii) the information is published on a blacklist, which has a negative meaning and induces to boycott or mistrust the persons listed; (iii) maintaining a blacklist generally requires a license and it is unclear whether such license was obtained for the blacklist in question; and (iv) although the surgeon participated in the public debate, the surgeon cannot be considered as a public figure (who is deemed more than averaged to tolerate public criticism and publication of information concerning him/her).
This judgement of the Dutch civil court can be considered as an important ruling on the right to be forgotten as the (same) Dutch civil court rejected similar claims of a journalist and accountant in 2015 and 2018. According to the court, a relevant (and decisive) difference in the matter at hand is that the information on the disciplinary conviction of the surgeon was publicly available through official channels.
The Dutch civil court rendered this judgment in July 2018, but was only published in December 2018. It seems that this delay was caused by an attempt of the surgeon to prevent the publication of the judgment itself, to avoid further attention to her.
For more information on this case or the right to be forgotten, please contact Kim Lucassen, Céline van Waesberge or Jacobine van Beijeren, members of our Life Sciences and Data Protection & Privacy Team.
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Céline van WaesbergeSenior Associate Attorney at law
Céline van Waesberge, attorney at law, works for the Competition & Regulatory practice group and is member of the Life Sciences Team and Data Protection & Privacy Team of Loyens & Loeff.T: +31 10 224 63 91 M: +31 6 11 44 26 95 E: firstname.lastname@example.org