The ruling Football TV: the door open for the commercially justified interest?

coauthor: Elise Troll

Taking a step back: what is FootballTV?

The now bankrupt VoetbalTV involved a partnership between the KNVB and Talpa Network and was a platform on which soccer matches at amateur level could be streamed live. Instead of an Ajax-Feyenoord match, viewers could thus watch a match like BVCB (C3) against VOC (C1). In addition, users could watch soccer moments and analyze matches on the platform. In total, VoetbalTV broadcast about 3,000 matches at amateur level per month. This included youth matches. Great for grandparents who wanted to watch their grandchildren play or for people who wanted to watch their best friend's championship game live but were unable to attend. But, for those involved who could be seen on the footage, it constituted a privacy violation, the AP said. FootballTV was already critical of the AP's stance in the months leading up to the proceedings, especially regarding the pressure the AP was putting on them to stop the activities while an actual penalty decision kept failing to materialize. KNVB director Jan Dirk van der Zee already called the AP a "snoring little bugger" that "threatens to severely harm amateur soccer."(1)

The crux of the dispute: legitimate interest or journalistic exception?

The vision of the AP The AP is clear: FootballTV did not seek prior consent from the data subjects who could be seen in the footage. FootballTV would also not have a "legitimate interest" within the meaning of Article 6(1)(f) AVG for the processing of personal data, because this would be a purely commercial interest, which cannot qualify as a "legitimate interest. In short: FootballTV has no basis and the processing is therefore unlawful. The AP's reasoning is in line with its own norm explanation published on November 1, 2019.(2) In it, the AP states that 'purely commercial interests' do not qualify as legitimate interests within the meaning of Article 6(1)(f) AVG. This standard explanation by the AP already generated considerable criticism from various quarters. Why is a purely commercial interest not a legitimate interest and what is the AP basing this on? For example, recital 47 of the AVG explicitly states that the processing of personal data for the purpose of direct marketing may be considered to have been carried out in pursuit of a legitimate interest. And is direct marketing essentially not also purely commercial? Critics were already of the opinion that the AP would have gone too far beyond its powers with this standard explanation. The vision of FootballTV FootballTV first argues that it falls under the journalistic exception within the meaning of Article 85 AVG and Article 43 AVG Implementation Act. The AP would therefore be completely (or partially) without jurisdiction to impose a fine. In addition, FootballTV argues that it does have a legitimate interest and that the AP's reading with respect to legitimate interest is contrary to the interpretation of authoritative working groups, committees, experts and case law. Unlike the AP, FootballTV believes that in order to demonstrate a legitimate interest, it does not have to allege that it has a legal interest has. There just needs to be a negative key be applied. This means that "justified" means not contrary to law. The court The court does not follow FootballTV's argument that there would be a journalistic exception. Although one could devote an entire article to this topic alone, the court considers - in short - that the broadcasting of the matches cannot be qualified as a "disclosure to the public of information, opinions or ideas. The images would have too little news value. What the court does accept is FootballTV's second argument. The court gives short shrift to the AP's argument that there must be a 'legal interest' if an organization wants to invoke the legitimate interest. The court is succinct about this: "that - in short - it should be a legal interest, the court has not found as such in that case law." The court involves a large body of case law in its judgment, including the illustrious Fashion ID European Court case. Also mentioned is the opinion of Working Group 29 (the predecessor of the European Data Protection Board) from which it follows that not only legal, but also all kinds of factual, economic and idealistic interests can qualify as legitimate interests. The court endorsed VoetbalTV's position that the question of whether there is a legitimate interest must be assessed using a negative test. That means not pursuing an interest that is contrary to the law. According to the court, the AP therefore assumed an incorrect interpretation of the concept of "legitimate interest" and - wrongly - did not include proportionality and subsidiarity in its judgment. Because the AP thus did not sufficiently investigate the processing of personal data by FootballTV and simply stopped at the reading that there cannot be a legitimate interest, the AP negligently made the fine decision, in violation of Art. 3:2 Awb.

And now?

So good news for FootballTV. The AP can still appeal the court's ruling, though, which would be a logical step given its steadfast view of legitimate interest. On the other hand, it is no secret that the AP is struggling with shortages of financial resources.(3) So the question is whether the AP has room and resources willing and able to appeal. In the meantime, there is room for organizations, relying on this ruling, to consider a purely commercial interest as "justified. We eagerly await the follow-up!

Footnotes

(1) www.knvb.nl/nieuws/amateurvoetbal/column-jan-dirk-van-der-zee/60477/column-jan-dirk-van-der-zee-autoriteit (2) autoriteitpersoonsgegevens.nl/sites/default/files/atoms/files/normuitleg_gerechtvaardigd_belang.pdf (3) www.trouw.nl/binnenland/voorzitter-autoriteit-persoonsgegevens-de-achterstanden-zijn-zo-groot-dat-het-lachwekkend-is~bb44d7a8/?referrer=https%3A%2F%2Fwww.google.com%2F More articles by Kennedy Van der Laan