Price History Published by Miljoenhuizen.nl Does Not Qualify As Personal Data
These days, houses for sale are not only put up in the shop
window of real estate agents, but also on the Internet. Online
advertisements on real estate websites usually contain address
details, the asking price as well as photographs of the house. The
house of the petitioner - who is referred to in the judgment as
"B." - is recommended at the website of Forza Makelaars
B.V. and also included in the database of the website
Miljoenhuizen.nl. Miljoenhuizen.nl collects its information online
by means of the spider technique, which means that data are being
collected automatically from other housing websites and posted at
Miljoenhuizen.nl.
Publication of Price History and E-mails
Apart from the above-mentioned data, the advertisement of the
petitioner also contains the price history of the house, from which
follows that (i) the house was bought by the petitioner for the sum
of €199,000 and that the initial asking price of €269,000 has
meanwhile dropped by almost €20,000 to €250,000. The petitioner
finds that publication of the price history by Miljoenhuizen.nl
qualifies as the publishing of personal data, and requests Mr.
Schoonderwoerd, the director of Miljoenhuizen.nl, pursuant to
Section 36 of Dutch Personal Data Protection Act (Wet
Bescherming Persoonsgegevens ("Wbp")), to delete the
price history as well as a number of e-mails that mention the
construction period interest rate. Schoonderwoerd does not respond
to this request. Therefore the petitioner requests the Dutch Data
Protection Authority ("Dutch DPA") to mediate. Such
mediation requires the voluntary cooperation of both parties. As
Schoonderwoerd does not respond to the request for mediation
either, the Dutch DPA closes the file.
The Petition Proceedings
The petitioner then submits a petition to the Court of Rotterdam
for the removal of the price information and the e-mails.
Schoonderwoerd defends himself at the hearing, first of all by
arguing that not he personally, but the legal entity (Columbus
Consult Ltd.) that owns and operates the website Miljoenhuizen.nl
is responsible for the processing of personal data. Secondly, he
argues that the data published cannot be regarded as personal data,
and that Miljoenhuizen.nl has already removed the e-mails of the
petitioner so that the petitioner's name can no longer to be
found on the website. Thirdly, he states that if the data could be
deemed personal data, the Wbp does not apply to the processing
since the data are used for journalistic purposes. In that
connection he refers to a ruling of the European Court of Justice
(ECJ) of 16 December 2008, in which the ECJ gave a broad
interpretation of the exception for journalistic purposes (click
here for an article concerning this ruling).
In its assessment of the petition the Court does not get around to
the last two arguments, since it honors the first defense of
Schoonderwoerd and holds that not Schoonderwoerd as a private
person, but Columbus Consult Ltd. is the data controller and thus
responsible for the processing of personal data. As a result, the
Court does not have to answer the question as to whether the
personal data processed by Miljoenhuizen.nl are personal data or
not.
The request is declared inadmissible, but the Court still considers
that the price history published on Miljoenhuizen.nl can in
principle not be regarded as a processing of personal data within
the meaning of the Wbp. The Court argues that these were
'exclusively data relating to the house, which are not so
characteristic for the petitioner that he can be identified by
them'.
(Too) Narrow Definition of the Term Personal Data?
This consideration of the Court is remarkable and
there are some arguments that speak against it. First of all, the
qualification of certain data as personal data within the meaning
of the Wbp is determined by the fact that these data 'relate
to' a specific person. Also data relating primarily to goods
may still provide information about a person, and may thus
'relate to' this person. Even though it has been determined
in legislative history that data relating exclusively to
objects do not qualify as personal data, if such data are so
characteristic for a certain person that he can be identified by
them they may nevertheless be personal data. The former
Registratiekamer (the predecessor of the Dutch DPA) has
established that for this reason a postal code with a house number,
or transactions and sales prices of houses, for example, may also
be personal data.
Conclusion
It is questionable in this matter whether the price history, which
relates primarily to the house, cannot be regarded as a personal
data after all. Because the price history has been published in
combination with the other data, such as the petitioner's
address, it does seem possible to ascertain the petitioner's
identity later still. Because the Court has only devoted a (brief)
consideration to this question, there is no extensive argumentation
with regard to this point. It is therefore by no means certain that
such data can never be regarded as personal data.