The website zwartelijstartsen.com, which contains names and photos of doctors and health care providers who are alleged to have committed a 'medical crime', is unlawful. So ruled the Central Netherlands District Court in summary proceedings instituted by the Stop Online Shaming (SOS) Foundation.
Written by Sara van Lieshout
SOS represents the interests of victims of online privacy violations and online unlawful expressions. At the end of last year, the foundation initiated summary proceedings against Slachtoffers Iatrogene Nalatigheid Nederland (SIN.nl). Underlying this was the online 'blacklist' offered by SIN.nl since 2010.
On zwartelijstartsen.com, some 900 doctors, dentists, nurses and psychologists were named (many with photos) and put away as perpetrators of "medical crimes. SOS deemed this "digital pillory" unlawful and, moreover, in violation of the AVG. For example, most doctors and healthcare providers on the blacklist did not have an entry in the BIG register. They are therefore allowed to practice as usual and patients can safely come to them.
So the list included not only suspended doctors, but also, for example, doctors - such as RIVM chief Jaap van Dissel - who had only been members of a medical disciplinary board that had rejected a patient's complaint. On the website, everyone was given the "blacklist stamp. Finally, a request for removal from the list was made virtually impossible by SIN.nl.
The fact that the list also contained a number of entries of doctors and care providers who did have an entry in the BIG register does not detract from this. Even then, the question remains whether presenting this information in this way outweighs the enormous impact on the interests of the individual doctors and care providers. After all, it was not clear to the public that this was a privately maintained list and thus not an official blacklist.
According to the preliminary relief judge, this case involves a clash of two fundamental rights. On the one hand, the right to respect the honor and good name of individual health care providers for which SOS Foundation stands up. On the other hand, the right to freedom of expression of Stichting SIN.nl. Which right ultimately carries more weight depends on the question of whose interest carries more weight in the given circumstances: the interest that individual citizens are not exposed by publications to frivolous accusations, or the interest that - due to a lack of public awareness - abuses that affect society should not be allowed to continue.
In the specific case, the balance of interests falls in favor of Stichting SOS. The fact that, according to SIN, the website was not intended as a pillory, but to inform and protect patients and to hold failing healthcare providers accountable, did not alter this.
The court in preliminary relief proceedings therefore rules that the website is unlawful. Especially given the fact that it concerns very serious statements, which often lack a factual basis. Although perhaps not every statement on the website can be considered unlawful, in the opinion of the Court in preliminary relief proceedings this fact does not outweigh the total image of the website, which seems to remove all nuance. The mere use of "blacklist" makes for a heavy accusation, especially when combined with such qualifications as "medical malpractice" or "failing doctors.
The preliminary injunction court prohibits SIN.nl from making statements, related to "blacklisting," "failing doctors/healthcare providers," "medical malpractice," or otherwise defamatory, libelous or insulting to individual doctors and health care providers. In addition, SIN.co.uk should request Google to remove all references to the blacklist from its search results. Finally, the website should be taken offline within two business days and the domain names transferred to the SOS Foundation.
SIN.nl appears to have partially complied. For example, although blacklistarts.com and blacklistarts.nl were removed, there is currently still a URL on the SIN website that links to the Wayback Machine. This is an independent website that allows users to go "back in time," so to speak, to see what websites looked like in the past. SIN.co.uk president Sophie Hankes, who was twice criminally convicted in 2017 and 2019, thus appears to be making another attempt to get out from under the verdict.
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