The petitioner in this case was convicted abroad in 2012 for illegal possession of weapons. The petitioner is a lawyer at a large law firm and was traveling for work. During an evening out, the petitioner and his companions got into a conflict with strangers on the street. The applicant then walked to his hotel, grabbed a machete, and returned to the scene of the altercation. The applicant then brandished the machete in a threatening manner. On the same day as the ruling, a local blogger published an article about the altercation and the ruling, including the applicant's name, profession, and a photo.
When the applicant's name is entered as a search term in Google Search, Google's search engine, two URLs (a .nl version and a .com version) leading to the article appear as search results.
On May 18, 2015, the applicant requested Google to stop displaying the URLs as results when searching for his name. Google refused to comply with this request. The applicant then asked the Autoriteit Persoonsgegevens , AP) to mediate, but the AP also rejected the request. The conviction is recent and the article about it is in the public interest, according to the AP. The applicant therefore had to take the matter to court.
As mentioned above, the Rotterdam District Court granted the applicant's request and ordered Google to remove the two URLs, subject to a penalty payment. Google has lodged an appeal against this decision.
In the appeal, Google argued, among other things, that the fact that the source page contains criminal data does not mean that Google processes this data. Google argued that the search results displayed do not show any criminal data and that it is only responsible for processing data in order to produce a structured list of results. According to Google, the prohibition on the processing of criminal personal data does not apply to it.
The court does not agree with Google on this point and refers to the Costeja judgment of the European Court of Justice, from which it concludes that Google processes the data from the source page, among other things, in order to make it available. It also follows from the Costeja judgment that Google must be regarded as the controller for this processing. According to the court, the prohibition on processing criminal data (Article 16 of the Wbp) therefore also applies to Google.
Google has further argued that the aforementioned prohibition can be circumvented because there is an exception (Article 23 of the Wbp) since the applicant has clearly made the data public, as this would be the direct result of his actions. The court does not agree with Google on this point either, because there has been no clear disclosure.
Google also invokes the journalistic exception in Article 3 of the Wbp, which also constitutes an exception to the prohibition on, in this case, the processing of criminal personal data. In that case, the privacy interests of the applicant must be weighed against Google's freedom of expression. The court ruled in favor of the applicant in this balancing of interests. The court ruled that the sentence imposed showed that this was not a serious case of possession of weapons, that the conviction had already been expunged, or cleared, before the court's decision, and that the applicant had obtained a Certificate of Good Conduct in the Netherlands in September 2016. The fact that the applicant is a lawyer and therefore plays a role in public life does not alter this, because the applicant works as an employee in a large law firm in the field of corporate law.
The court ruled that by displaying the two URLs in the results list, Google had violated the prohibition on the processing of criminal data and ordered Google to remove the URLs. If the data in question had been 'ordinary' personal data, the court's ruling would have been no different; even then, the court ruled that the balance of interests would have been in favor of the applicant.
Google also objected to the court's ruling that the .com URL should also be removed, because visitors from the Netherlands are automatically redirected to the .nl version after clicking on the .com URL. However, the court ruled that this objection was unfounded because users can change their settings to allow them to access the .com URL. Google also argued that the .nl URL does not appear in the results list when searching for the applicant's name and therefore cannot be removed. According to the court, Google contradicts itself on this point because it had previously argued that it had removed the .nl URL from the search results.
The publication of the ruling has since been withdrawn. Presumably because the ruling contained information that could be used, for example, to find the source page using alternative search terms other than the name of the applicant.
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