The right to be forgotten – a Dutch perspective

This paper will be investigate to what extent the right to be forgotten as proposed by the European Commission is already recognized in Dutch tort law. The focus of this paper will be on the existence and the desirability of such a right and not on questions of enforcement. It is submitted that although Dutch law does not recognize the right to be forgotten as such, several judicial decisions can be identified that afford protection to interests that are also protected by the proposed right to be forgotten. This indicates that in the Netherlands a right to be forgotten in some form or another might have developed over time but this would have been a lengthy affair. A more precise formulation of this right by the legislator is therefore welcomed. It has been remarked that the name ‘right to be forgotten’ may give rise to unrealistic expectations but the Dutch experience shows that people do not seem to be very aware of their rights. ‘A right to be forgotten’ – however imprecise from a legal viewpoint – might be catchy enough to remedy this.


Introduction
This paper will investigate to what extent the right to be forgotten as proposed by the European Commission is already recognized in Dutch tort law. 1 Before tackling this issue, a brief overview of the way the proposed right to be forgotten was received in the Netherlands will be provided. The focus of this paper will be on the existence and the desirability of such a right and not on questions of enforcement.
How the proposed right to be forgotten was received In one newspaper it was argued that the right to be forgotten goes against human nature (Schnitzler 2012). With reference to reality shows it was submitted that people like to make personal confessions (such as being gay) on television. Many people will regard an invisible life as devoid of meaning. Being forgotten is the lot of the homeless, most people would embrace the prospect of eternal life in cyberspace.
Although the right to be forgotten was received with a fair amount of criticism by legal authors, most of them eschewed the apocalyptic images evoked by some American authors ('the biggest threat to free speech on the Internet in the coming decade', Rosen 2012). 2 Cuijpers et al. (2012) stress the vagueness of the proposed right. First of all, they argue that the question of who is regarded as a controller needs further clarification. Although the right to be forgotten has been justified with reference to social network sites such as Facebook, it is not at all clear that these sites will be regarded as controllers who make personal data public. Secondly, they regard as problematic the fact that the controller should exercise a balancing test when confronted with a request by the data subject to erase personal data. If the decision by the controller is deemed to be wrong he or she will be punished with heavy fines.  expects that for this reason the fines cannot be upheld in the light of the European Convention of Human Rights. 3 He further argues that the present formulation of the right to be forgotten is so vague that it will necessitate concretization at a national level. This will undermine the goal to provide a uniform framework. He is concerned with the fact that the right to freedom of expression is reduced to an exception to the right to be forgotten.  finally concludes that the name 'right to be forgotten' will create expectations that cannot be fulfilled and therefore suggests different names such as 'right to delete'. Kranenborg (2013) briefly mentions that some authors question the enforceability of a right to be forgotten but otherwise regard it as an existing right in a modern outfit. 4 Van Hoboken (2012) agrees on the last point but is critical nonetheless. The scope of the right to be forgotten is not clear in the light of the media exception stipulated by art. 80 of the proposed regulation. In his view, this lack of clarity will lead to many legal debates and much confusion. Prins (2011) notes that the internet is characterized by remembering and not by forgetting. Technically and practically it is impossible to rewrite one's past or to start with a clean slate. 5 She maintains that, on top of that, companies lack incentives to delete information that is no longer necessary to keep in store. A practical problem is that it is legally difficult to establish when certain information should be deleted. She regards a right to be forgotten as too absolute a notion and pleads for a reformulation of the present right to correct with a view to making it more practical. Currently, when exercising their right to rectify, data subjects have to specify which information they want to be corrected. Prins argues that this requirement undermines the efficacy of the right to correct since no one will have an overview of the information stored about them.
Only the chairman of the Dutch Data Protection Authority, Jacob Kohnstamm, was decidedly positive about the right to be forgotten in an interview. He regarded it as essential that people can develop themselves freely in different phases of their life without being confronted with their past (Sillivis Smit 2011).
On balance, it seems fair to say that most Dutch commentators adopt a pragmatic rather than a principled approach. The interests protected by the right to be forgotten are not denied but there is concern about the scope and the practicability of this right.
The privacy narrative in the Netherlands Law in the books: legislation Article 10 of the Dutch Constitution seems to distinguish between relational privacy and informational privacy (Schuijt 2010). Section 1 states that everyone is entitled to respect for his 'personal sphere' (persoonlijke levenssfeer) and that exceptions should be provided by law, whereas sections 2 and 3 instruct -in short -the legislator to formulate laws regarding the processing of personal data. This latter has been done first by the Act on the registration of personal data (Wet Persoonsregistraties) of 1988, which in 2001 was replaced by the Act on the protection of personal data (Wet bescherming persoonsgegevens; hereinafter Wbp) that implemented Directive 95/46/EC on the processing of personal data.
It should be noted, however, that this division is not that clear cut. Protection of the personal sphere is not confined to relational privacy but encompasses protection against unauthorized publication of personal facts as well. Informational privacy is therefore both protected by tort law and by the Wbp. Although the focus of this article is on informational privacy, in the following reference will be made to 'the right of privacy' for the sake of brevity.
The right to privacy is protected by the tort of negligence (art. 6:162 of the Dutch Civil Code, Burgerlijk Wetboek; hereinafter BW). 6 Article 6:162 BW is of a general nature in the tradition of the French Civil Code and does not identify the interests that are protected. It reads as follows 7 : (1) A person who commits a tortious act which can be attributed to him, against another person, must compensate the damage that the other person has suffered in consequence thereof. (2) A violation of a right and an act or omission in violation of a duty imposed by law or of what according to unwritten law has to be regarded as proper social conduct is to be regarded as a tortious act insofar there was no justification for it. (3) A tortious act can be attributed to the tortfeasor if it results from a cause for which he is accountable by virtue of law or generally accepted principles.
The tort of negligence and the relevant case law constitute an exception prescribed by law in the meaning of art. 10 section 2 of the European Convention on Human Rights (hereinafter ECHR). 8 Whenever the right to privacy and the right to freedom of speech collide, judges will balance all the relevant circumstances of the case at hand in order to decide which of the two rights prevails. 9 Law in action: case law and efficacy of Wbp The majority of private law cases deals with publication of personal facts. There are some cases about nuisance or trespass but they constitute a minority and are sometimes decided without reference to the right to privacy. 10 Personal development, which according to the European Court of Human Rights is protected by art. 8 ECHR, is only referred to in passing by the Dutch Supreme Court. 11 An evaluation of the Wbp concluded that the Wbp does not seem to have had a big impact (Winter et al. 2008). Citizens make limited use of the rights they have, only half of the companies have created a privacy code, and in many organizations there is lack of knowledge about the Wbp. It is finally noted that although privacy is an interest that citizens are aware of, they do not seem to care deeply about it. In the abstract, safety prevails over privacy.
Prins (2011) mentions an experiment she conducted in which 90 students tried to verify whether their personal data were being processed. In roughly 75% of the cases they failed to obtain this information despite the fact that they invoked the Wbp.

Narrative
Thus, it seems that the notion of privacy in practice is most strongly associated with protection against unwanted publication of personal facts. In other words, the privacy narrative in Dutch private law seems first and foremost concerned with the way a person is regarded by their peers and thus with reputation. It therefore does not come as a surprise that the Dutch Supreme Court protects reputation in the context of privacy protection (Schuijt 2010). 12 However, the Supreme Court has not explicitly recognized a right to informational selfdetermination.
Is the right to be forgotten an aspect of the general right to personality?
General personality right and special personality rights Although recognition of a general right to personality had been argued for, incidentally in the 1930s, there never was a serious debate on the merits of this right (Nehmelman 2002;Verheij 2002). 13 Therefore, the Supreme Court took everyone by surprise in 1994 when it recognized a general right to personality in its Valkenhorst II decision. 14 The facts of the decision were as follows. In 1935, X gave birth to a daughter outside wedlock. To avoid social disapproval the birth took place in a Catholic institution (at the time of litigation, named Valkenhorst) that aimed to help single mothers. Upon admission, X revealed the identity of the father. When an adult, the daughter desired to know the identity of her father. Since her mother refused to provide any information, the daughter requested Valkenhorst to reveal the identity of her father. The policy of Valkenhorst was to give this information only when the mother was deceased or, in the event the mother was still alive, with the consent of the mother. Since X did not give her consent, the request of the daughter was turned down and the daughter took Valkenhorst to court. The Supreme Court decided in favour of the daughter. It ruled that the right to privacy, the right to freedom of thought, conscience and religion and the right to freedom of expression are all underpinned by the general right to personality and that this right protects the right to know the identity of one's parents.
In the Valkenhorst II decision, the Supreme Court has construed the general right to personality as an unwritten constitutional right that underlies the above-mentioned written constitutional rights. It has therefore been characterized as a super constitutional right (Verheij 2002, 38). The rights that are based upon the general right to personality are regarded as special personality rights. The need for general personality rights has been questioned. From the above it is clear that the tie between the general personality right and special personality rights on the one hand and constitutional rights on the other hand is tight. The main difference between these rights does not lie so much in the content but in the context in which they operate. The general personality right and special personality rights operate between private parties, whereas constitutional rights govern the relationship between state and citizens (Lindenbergh 1998).
Past crimes and mistakes 15 A couple of months before Valkenhorst II, the Supreme Court had to answer the question of whether a convicted murderer (Ferdi E.) had a right to object against publication of some photos of him by a weekly magazine in the context of an article about the six most notorious murderers after the Second World War. Ferdi E. objected on the grounds that the publication would violate his right to privacy and would hinder his re-socialization after he had served his time in jail. The Court of Appeal of Amsterdam rejected this claim with reference to the right to freedom of expression. The Supreme Court ruled that the weight of the right to be let alone increases with the passing of time but underlined that it is not possible to establish in general when this right would outweigh the right to freedom of expression.
After Valkenhorst II, the Supreme Court derived from the general right to personality a right not to be confronted with a criminal conviction that dated from decades ago. 16 The facts that gave rise to this decision were the following. In 1944, Van Gasteren had been criminally convicted for killing a German Jew, Walter Oettinger, who lived in hiding in his house. After the Second World War, Van Gasteren did not opt for a rehabilitation procedure with the Supreme Court but requested and obtained a pardon arguing Oettinger presented a threat to the resistance movement. In 1990, the national newspaper Parool published three articles in which it was argued that the killing of Oettinger was not an act of resistance but a brutal murder motivated by the wealth of Oettinger. At that time the file of the pardon procedure did not exist anymore. Van Gasteren sued Parool for damages because of defamation. The Supreme Court ultimately ruled in favour of Van Gasteren upon the theory that the general right to personality encompasses the right no to be confronted with a conviction that dated back more than 40 years. The Supreme Court also referred to this right as the right to be let alone and separated it from the right to reputation. It noted that the rights of Van Gasteren carry a lot a weight and that respect for the human person implies that after a criminal conviction the facts of a crime should not be constantly held against the convict. After so many years only special reasons of public interest would justify publication about the crime. In addition, the Supreme Court stipulated that the accusation must be supported by research that meets a high degree of accuracy.
In 1998 another journalist drew attention to the facts surrounding the death of Walter Oettinger on her personal webpage. Van Gasteren took her to court but lost this time because he himself had discussed the death of Oettinger in a television interview. In that interview he incorrectly said that he had been fully rehabilitated. Under these circumstances the Supreme Court judged that the right to freedom of expression of the journalist prevailed over the rights to privacy and to reputation by Van Gasteren. 17 Without reference to the general personality right, lower courts have provided some limited protection against being haunted by past mistakes. Some relatively recent examples are discussed below.
In the first case, the defendant accused the plaintiff on a website inter alia of being a 'pedophile lover', of involvement in sexual abuse of five children, and of sabotaging a police investigation into sexual abuse of children. 18 The website mentioned the plaintiff's name and also displayed photos of him. The plaintiff sued the defendant to obtain a court order to remove this information from the website, future abstention of negative remarks about the plaintiff, rectification and damages. The defendant argued that he did not own the website any more. The Court of Rotterdam considered the publishing of personal information on the internet by private persons to be a violation of the Wbp and therefore tortious. The fact that the defendant had sold the website for a symbolic price of E1 was deemed irrelevant by the Court because the defendant still exercised control over it. With reference to the presumption of innocence and the risk that people would take the law into their own hands the Court considered that the plaintiff's right to privacy prevailed over the right to freedom of expression by the defendant. It ordered the defendant to remove the accusations and personal information about the plaintiff from the website. The other demands of the plaintiff were rejected due to insufficient substantiation.
The facts of the second case were as follows. 19 In 2000, A. had founded a company aimed at providing Dutch health care institutions with nurses from the Philippines. The company went bankrupt in 2002 and a national newspaper, de Volkskrant, published a series of articles about the bad housing circumstances of the nurses and about money swindling. These articles were stored in the digital archive of de Volkskrant and popped up when a Google search was carried out. In 2009, A. requested the Court of Amsterdam order de Volkskrant to delete the articles from its archive. He argued that the availability of the articles on the internet made it impossible for him to set up a new enterprise. He contended that a bank had refused a loan after it had found the articles. A. did not in any way dispute the lawfulness of the publication of the newspaper articles back in 2002 but argued that the right to freedom of expression should be restricted after all these years to protect his reputation. The Court of Amsterdam rejected this claim. It stated that next to being a public watchdog the press also has the function to keep news available in archives. It is a societal interest that these archives constitute a reliable picture of the past. The single fact that A. after some year is still hindered by the ready availability of these articles on the internet does in itself not justify a limitation on the right to freedom of expression. This stance was also adopted by the Court of Groningen in a similar case involving plagiarism by a former law student in an article for a student magazine. 20 Both cases merit attention because the plaintiffs had not been convicted of any crime.
In the third case, the plaintiff had been criminally convicted in 1995 for the sexual abuse of minors who had been trusted into his care. 21 In 2009, his name and address were published on a Dutch website that intended to warn parents against paedophiles living in their neighbourhood. Flyers with the name and address of the plaintiff were distributed in his neighbourhood and a protest demonstration was organized. As a result, he and his family were intimidated and mobbed by neighbours and they eventually moved out. The plaintiff sued the owner of the website and demanded an injunction with penalties to forbid further publications on the website about him with his name and address. The Court of Utrecht granted this request. It deemed the publications on the defendant's website unlawful in the light of the foreseeable serious personal consequences for the plaintiff and his family. These publications, in fact, would stimulate people to take the law into their own hands.
The fourth case arose out of the following facts. 22 A., born in Iraq, requested asylum in the Netherlands in 1991. In 1993 he was sentenced to jail for eight years for murdering his mother-in-law by means of running her over with his car several times. Owing to good behaviour in jail, he was set free in 1997. His request for asylum was turned down because of his crime. He stayed in the Netherlands however, because he could not return to Iraq. In 2004 he submitted a request for a regular residence permit so that he could have a family life (art. 8 ECHR) with his daughter. After some legal battles the highest administrative court of the Netherlands ruled that his request should be granted since more than ten years had passed since his criminal conviction. In those years A. had studied law and became active as a legal advisor and an interpreter on a voluntary basis. In parliament, a debate was ignited about asylum seekers who had committed crimes. In the period 2007 -2009, De Telegraaf, the largest national newspaper, devoted a lot of attention to this debate. It published nine articles in which the case of A. was described in detail. The articles mentioned his full name and contained several photos of A. A. went to court and demanded that De Telegraaf stopped mentioning his full name and stopped publishing photos of him. He argued that the articles by De Telegraaf greatly hindered his re-socialization. De Telegraaf defended itself by reference to the right to freedom of expression. The Court of Amsterdam ordered De Telegraaf to stop publishing photos of A. and to mention only his first name. The Court attached weight to the fact that the articles in De Telegraaf were aimed at the existing rules for granting residence permits as such. The case of A. was only of illustrative value and revealing his identity did not contribute much to the political debate.
In 1983, the Dutch beer millionaire Freddy Heineken was kidnapped. The kidnappers were arrested and jailed for 12 years. In 2011 a movie was released that was based on the kidnapping, although it departed in three ways from the facts of the crime. The introductory text to the movie stated that the movie mixed facts and fiction, that it did not aim to provide a historically correct account of the kidnapping, and that characters in the movie were largely based on fiction. However, the names of the kidnappers in the movie were identical to the names of the real kidnappers. In the movie, the kidnappers on three occasions used much more violence than they used in reality. One departure from reality was a scene which suggested that one of the kidnappers had beaten up his girlfriend. The beating up itself was not portrayed but the girlfriend appeared with a black eye. Two of the kidnappers were of the opinion that the movie tarnished their reputation. They went to court to demand (i) insertion of a full screen text to be shown at the beginning and the end of the movie that would state explicitly which parts of the movie were fictitious; (ii) publication of this text on the website of film company; and (iii) publication of this text in three national newspapers. The Court of Amsterdam rejected this claim. 23 It considered that many people were involved in the kidnapping and that there was no good reason to regard the historical account of plaintiffs as the ultimate truth. Furthermore, the Court pointed out that acceptance of such a claim would have a chilling effect on movies based on historical events. All persons involved would want to have their own disclaimer, which would lead to lengthy, unreadable, and misleading disclaimers. More in particular, the Court considered that the fictitious scenes did not portray behaviour that was so far removed from reality that they would tarnish the plaintiffs' reputation. It also attached weight to the fact that the film company had clearly stated in court that one of the plaintiffs did not beat up his girlfriend, that the disclaimer on the future DVD version of the movie would be shown for longer (eight seconds instead of four seconds), and that the public at large understands that a movie is not a documentary.

Other cases
There are some other recent cases that deal with another aspect of the right to be forgotten. At stake here is the interest of not being visible on the internet in order to prevent possible repercussions.
The first case concerned the demand of a mother to order her ex-husband to remove photos of their five-year-old son from his (the husband's) profile on the Dutch social network site, Hyves. 24 The plaintiff argued that her work in an institution for psychiatrically disturbed criminals rendered it vital that no facts about her private life were disclosed on the internet. The defendant relied on his right to freedom of expression. The Court of Almelo distinguished between those photographs that were only visible to friends and those that were visible to anyone accessing the internet. The Court considered only the latter photos violated the privacy of the plaintiff and her son.
In the second case, ex-lovers were divided on the issue of whether the father could publish things about his ten-year-old son on a weblog. 25 In 2005 the father had lost the right to see his son by court decision. The mother was ordered to give the father information about his son but she did not abide by this. On a personal weblog, the father had published a photo of his son, said how much he missed him, and annually wished him a happy birthday. The mother demanded on behalf of her ten-year-old son a court order prohibiting the father from continuing the weblog. She argued that the weblog amounted to a violation of privacy and that their son might be bullied if classmates found the weblog. The Court of Arnhem denied the claim. It noted that the photo of his son that the defendant had published on his weblog was very old and so rendered the son unrecognizable. The Court furthermore stressed that the weblog was mostly about the defendant's own life and did not contain any information about the life of his son. Finally, the Court observed that the weblog was the only means by which defendant could reach out to his son. In these circumstances the Court held that defendant's weblog did not violate the privacy of his son.

Concluding observations
On the basis of the above decisions, it can be concluded that there is a right not to be confronted with one's past after a certain time has elapsed. When exactly this right comes into existence is unclear; everything depends upon the individual circumstances of the case. Despite its constitutional roots, this right therefore seems to offer less protection than more traditional, well-delineated rights that are recognized by private law. Judges attach a lot of weight to the context in which past crimes are raked up. A political debate on immigration law does not justify a detailed description of an over-a-decade-old crime that reveals the identity of the convict. In their contextual approach, judges seem sensitive to mitigating measures by defendants that strike a balance between the right to privacy and to reputation on the one hand and the right to free speech on the other hand. Illustrative of this are the considerations of the Court of Amsterdam on the disclaimer of the movie based on the kidnapping of Freddy Heineken. It estimated that although the disclaimer was not in sight for a long time and was difficult to read, the public who went to see the movie in the cinema would be aware of the fictitious character of many scenes due to current newspaper coverage. The Court acknowledged that this might not be the case for people who would see the DVD version in the future but it was satisfied by the fact that in the DVD version the disclaimer would be shown for longer.
In the last two cases, the right to privacy did not protect against internet publications about children without the consent of their legal representative. Again, the courts did not formulate a hard and fast rule but weighed all the circumstances of the case. Of special relevance were the nature of the information, the extent to which the information was public, and the fact that defendants were the fathers of the children concerned. The mere possibility that this information might be used by third parties to the detriment of the mothers and/or the children was in itself deemed insufficient to support a prohibition. A prohibition was granted, however, when such a risk could be made concrete with reference to the work of the mother.
This means that Dutch tort law does not in any general way protect people who disclose personal (but not embarrassing or defaming) information on the internet themselves and later on wish to delete it. Only when this information is used by others to harass them or when a very long time has elapsed does the law offer protection. When companies collect information on the internet, the Wbp (by which Directive 95/46/EC was implemented) provides some protection but there is evidence that this law does not work very well in practice.
It is therefore submitted that although Dutch law does not recognize the right to be forgotten as such, several judicial decisions can be identified that afford protection to interests that are protected by the proposed right to be forgotten. This indicates that, in the Netherlands, a right to be forgotten in some form or other might have developed over time. Both the structure of Dutch tort law with its emphasis on conduct and not on protected interests and the open-ended nature of tort law principles are likely to have made development of such a right to be forgotten a lengthy and cumbersome process. A more precise formulation of this right is therefore to be welcomed. This would create a foundation to build without stifling further development. It has been remarked, with some justification, that the name 'right to be forgotten' may give rise to unrealistic expectations, but the Dutch experience with Directive 95/46/EC shows that people do not seem to be very aware of their rights.