Brinkhof scores victory for VoetbalTV in first Dutch case on GDPR fines

23 November 2020

Today the District court Midden-Nederland has rendered a decision in the appeal of VoetbalTV against the Dutch Data Protection Authority (Autoriteit Persoonsgegevens). This is the first Dutch decision on fines under the GDPR.

VoetbalTV, an initiative of the Royal Dutch Football Association and Talpa Network, made it possible for football players and fans to view professional video footage of amateur matches on the VoetbalTV platform. The Data Protection Authority issued a fine of € 575,000 because it deemed that the recording of amateur matches was unlawful under the GDPR, as VoetbalTV could not successfully base its processing on the legitimate interest ground of the GDPR.

The legitimate interest (or ‘balancing provision’) is one of the six lawful grounds for processing under the GDPR. This open and flexible norm is often used in practice, but the Data Protection Authority has recently begun to maintain a rather strict interpretation: an interest is only ‘legitimate’ insofar as it is referred to in the law as a legal interest, i.e. an interest that is referred to in the law. If an interest is not mentioned in a law, it is not legitimate and can therefore not be taken into consideration in the balancing test. According to the Data Protection Authority, purely commercial interests are not legitimate. In practice this would make much processing illegitimate, but today the court has reined in the Data Protection Authority.

The Court annuls the decision of the Data Protection Authority, including the fine. Arguments put forward by Quinten Kroes and Manon Oostveen on behalf of VoetbalTV are adopted; the court rejects the strict interpretation of the legitimate interest of the Data Protection Authority in clear terms. The court determines that the assessment of legitimate interests is a negative test: if an interest is not illegitimate/against the law, it qualifies as a legitimate interest under the GDPR. This is of major importance for privacy in practice, not only for VoetbalTV.

An unofficial translation of the decision can be found here.