AVROTROS – Court Ruling (Netherlands, 2024)

The controller is a Dutch radio and television broadcaster. On its website it offers a forum called “Radar”, where people who had signed up can post articles and reply to other people’s posts. The users must comply with some conditions of use, called “Huisregels” (House rules). Compliance with those rules is monitored by the moderators of the forum. The data subject has been participating in the forum since 2006. After being banned for the violation of the house rules, the data subject filed an access request. The controller did not act on this request. Therefore, the data subject sued the controller before the District Court Midden-Nederland (Rechtbank Midden-Nederland), asking the court to order the controller to comply with the access request and provide him a copy of his information relating to the violation of the house rules. The controller argued it was not obliged to act on the access request since the so called “journalistic exception” applied: Article 85 GDPR provides that Member States shall reconcile by law the right to protection of personal data with the right to freedom of expression and information, including the processing for journalistic purposes. To this purpose, [https://wetten.overheid.nl/jci1.3:c:BWBR0040940&hoofdstuk=4&artikel=43&z=2018-05-25&g=2018-05-25 Article 43 of the GDPR Implementation Act] (Uitvoeringswet Algemene verordening gegevensbescherming – UAVG) foresees that Article 15 GDPR shall not apply to the processing of personal data exclusively for journalistic purposes. On 4 January 2023, the court stated that the controller could not rely on the so called “journalistic exception”. Moreover, it ruled that the controller had already sufficiently given the data subject access to his personal data, but ordered it to provide him with the information as described in Article 15(1)(a) to 15(1)(h) GDPR. Both the data subject and the controller appealed the decision before the Court of Appeal of Arnhem-Leeuwarden (Gerechtshof Arnhem-Leeuwarden). The data subject argued that he has the right to access his data, since the information about his moderation process does not fall under the journalistic exception. The controller that the data subject cannot invoke the right to access in this case and that this exception applies, since Radar has fulfilled the role of public watchdog for many years and the forum has the purpose of providing inputs for the TV programmes broadcast by the controller. The court recalled that the purpose of the right of access is to enable the data subject to acquaint himself with the personal data collected about him and to check whether those data are accurate and have been processed lawfully. The court noted that the CJEU had ruled that a processing can be considered for journalistic purposed, and therefore national law implementing Article 85 GDPR applies, only if the sole purpose of the processing is the disclosure to the public of information, opinions or ideas (see [https://curia.europa.eu/juris/document/document.jsf?text=&docid=210766&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=440401 C-345/17, Buivids, para. 59]; [https://curia.europa.eu/juris/document/document.jsf?text=&docid=76075&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=440744 C-73/07, Satamedia, para. 62]). The court held that the forum is an integral part of Radar’s entire journalistic platform and that the processing of personal data on the forum cannot be viewed separately from the journalistic purposes served by the controller with its TV programmes. In other words, the forum and the other products managed by the controller are so closely linked that the sole purpose of the whole set of journalistic activities is the disclosure of information, opinions and ideas to the public. As for moderation, the court ruled that it equally serves the public exchange of information, data and ideas. For example, the deletion of an offensive message is necessary to protect the freedom of expression of forum users among themselves. Therefore, the court set aside the data subject’s appeal and held that no right of access existed since [https://wetten.overheid.nl/BWBR0040940/2018-05-25/#Hoofdstuk4_Artikel43 Article 43 UAVG] applied.