SPEC ENTERTAINMENT B.V. – Court Ruling (Netherlands, 2020)

The plaintiff was victim of a robbery in her flower shop. Afterwards, she cooperated with a TV program to talk about the robbery. The reconstruction of the scene was shot with the plaintiff’s fragment of voice. The TV program had been included at a later stage in a theatre show which was aimed to be broadcasted on TV. The plaintiff filled a complaint against the company using her voice in the theatre show. The plaintiff argued inter alia that her voice had been processed without any legal basis, and that the controller violated Article 6 GDPR. The Court had to assess whether a person’s fragment of voice constitutes personal data or anonymous data, whether the processing was lawful and whether the fragment of voice could be deleted. The Court found that anonymous data is data that cannot be traced back to an identified or identifiable person. In the present case, the fragment of voice could lead to the plaintiff’s identification without disproportionate efforts. The Court considered that the information gathered here was so unique that it could only relate to one person. It further found that voice data constitutes biometric data within the meaning of Article 4(14) GDPR. Regarding the lawfulness of the processing, the Court considered that the use of the voice in the context of an artistic form of expression falls within the scope of Article 6(1)(f) GDPR. Also, it stressed that the processing of the personal data for an artistic form of expression does not allow the exercise of the right of erasure under Article 17 GDPR pursuant to Article 85 GDPR and a specific provision in Article 43(2) of the Dutch Data Protection Act that makes Article 17 GDPR inapplicable in cases of artistic expression. Thus, the Court found that the processing of the personal data was lawful and rejected the complaint.