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Data Protection Laws and Freedom of Expression: NetherlandsFile:Flag of the Netherlands.svg

 

 

I. First-Generation Statutory Law

The Netherlands adopted first-generation data protection legislation in the form of the Data Protection Act 1988.
 
Special Expression Derogation
The law set out a complete exemption for “personal data files which are solely intended for us in the public supply of information by the press, radio or television” and also “books and other written publications and catalogues thereof.” (s. 2(b) & (c))
 
Broad Expression Derogation
There was no specific provision.
 
Personal Exemption
The law excluded personal data files which were by their nature intended for personal or domestic use (s. 2(a)).
 
Knowledge Facilitation Framework
The law set out a limited derogation for files maintained solely for research or statistical purposes which waived both proactive and reactive (i.e. subject access) transparency requirements. Since rectification and objection rights were effectively tied to subject access, these control rights were also effectively disabled in this context. Exemption was provided from a specific reactive right to be informed of any disclosure of personal data to a third party within the preceding year whereany results obtained through the use of this personal data could not be related to individual natural person (s. 33). In addition, the Act provided a complete exemption for files held in an archive within the meaning of the Dutch Archives Act 1962 (s. 2(d)).
Parliamentary Debates
Special Expression Derogation
The proposed legislation was debated in the lower chamber of the Dutch Parliament on 1st, 2nd, and 3rd September 1987 and the in the upper chamber on 27th December 1988.  In the lower chamber, several MPs expressed support for the exclusion of the media from the scope of the data protection law. While generally supportive, Korthals MP (People’s Party for Freedom and Democracy) observed that publications in the media could be extremely harmful. He accordingly suggested that the media should adopt a code of conduct. In his reply, Minister Korthals Altes pointed out that the adoption of such a code of conduct was within the responsibility of the media.[1] Leerling MP (Reformatory Political Federation Party) remarked that it is in his opinion strange that base files of written publications are excluded from the Act, while books as a product fall within the scope of the Act.  In the upper chamber, Wagemakers MP (Christian Democratic Appeal Party) observed that the video-tapes should also be covered by this exemption as videos are taking over the position of books.[2] Minister Korthals Altes replied that video-tapes could not be qualified as written publications and, due to being more intrusive, should not be excluded from the application of the data protection law.[3]
 
Broad Expression Derogation
In the lower chamber, Leerling MP wondered why, since the Act creates exceptions for media archives, a similar exception wasn’t made for ecclesiastical registrations. Schutte MP (Reformed Political League Party) and Van den Berg MP (Reformed Political Party) expressed similar concerns.
 
Personal Exemption
In the lower chamber, Leerling MP questioned whether the negative formulation of exemptions should not be replaced by a positive definition of data falling within the scope of application of the data protection law.[4] Minister Korthals Altes argued that this would make the law too narrow,[5] to which Leerling agreed.[6]
 
Knowledge Facilitation Framework
In the lower chamber, Van Es MP (Pacifist Socialist Party) submitted that the processing of personal data for scientific or statistical purposes should only be permissible if the respective data subject consented thereto.[7] Minister Korthals Altes firmly disagreed, noting that such a far-reaching limitation would stifle the use of data for scientific and statistical research.[8]
 

II. Second-Generation Statutory Law

The Netherlands adopted second-generation data protection legislation implementing Directive 95/46 through the Personal Data Protection Act 1999.
 
Special Expression Derogation
The Dutch data protection law applied the data quality principles and the need for a legitimating ground for processing without restriction to the media. In contrast, the media was unconditionally exempted from proactive direct and indirect, retroactive transparency rules and supervisory oversight by the DPA. An exemption from sensitive information rules was granted if processing was ‘necessary’ for journalistic purposes. No derogation was provided for the media from the legitimating ground condition. The media was, however, fully exempted from the notification of processing and the data export conditions. Literary and artistic purposes also fell within the special expression regime (art. 3).
 
Broad Expression
There was no specific provision.
 
Personal Exemption
The Dutch data protection law did not apply to processing of the personal data ‘in the course of a purely personal or household activity’ (art. 2(a)).
 
Knowledge Facilitation Framework
The data quality principles in principle applied fully to the processing for historical, statistical and scientific purposes. However, the further processing of data for historical, statistical or scientific purposes was deemed not incompatible with purpose limitation if the necessary arrangements had been made to ensure that the respective data are only used for these purposes (art. 9(3)).  Such processing was also exempt from subject access both proactive transparency other than in cases of direct collection and also the latter exemption also applying where data formed part of an archive record transferred under the Archive Act 1995 (art. 34), as well as from the time limit principle (art. 10(2)).  Sensitive data could be processed without consent for the purpose of scientific research or statistics if it was in the public interest, necessary, obtaining consent would involve disproportionate efforts and if the processing does not affect an individual’s privacy to a disproportionate extent (art. 23(2)). No derogation in favour of knowledge facilitation was provided from data export and legitimating conditions. Derogations from the notification condition were subject to stringent limitations (art. 30).
Parliamentary Debates
Special Expression Derogation
No debates took place in parliament. However, the Parliamentary Commission on Justice and Internal Affairs discussed how broadly the terms ‘journalism’, ‘literature’ and ‘art’ should be interpreted. The government opined that the interpretation of these terms should be decided on at the European level.[9]  This Committee also discussed the interface between these provisions and those for research, historical, or statistical purposes (see below under Knowledge Facilitation Derogation).
 
Broad Expression Derogation
No relevant debates were located.
 
Personal Exemption
No relevant debates were located.
 
Knowledge Facilitation Derogation
During the legislative process, concerns were voiced by medical professionals regarding the temporal limits on keeping data for scientific research purposes.[10] In the Report of the Parliamentary Commission of Justice and Internal Affairs it was moreover recorded that a debate took place on the extent to which data gathered for journalistic, artistic or literary purposes could also be considered to be data collected for research, historical, or statistical purposes. Pursuant to the government, these categories may but do not have to be congruent.[11] It was, furthermore, discussed whether the notion of an exception for research, historical or statistical purposes was outdated. As much scientific research is commercially funded, the line between scientific research and commercial activity has become increasingly blurred. The government maintained that it was not necessary to make a distinction between publicly and privately or commercially funded scientific research.[12]
 
In the parliamentary debates, several MPs asked questions in relation to the knowledge facilitation derogations. Scheltema-de-Nie MP asked which kind of research would fall under the exception provided for in Art. 21(4) of the implementing law, which only concerned health data on inherited characteristics.[13] In relation to the same article, Schutte MP asked how the exception related to the establishment of someone’s identity in a criminal investigation by means of DNA.[14] Halsema MP seconded this question, asking whether a separate article was necessary as Art. 21(4), in their opinion, only related to medical research.[15] Rietkerk MP asked whether market research and policy research would fall within the scope of the statistical and scientific research exemption.[16]
 
Replying to these questions, Minister of Justice Korthals assured Scheltema-de Nie MP that personal data used in medical research was exempted from temporal limits.[17] However, measures would have to be adopted to prevent the respective data to be used for other purposes. In response to the questions asked by MPs Schutte and Halsema, the Minister emphasized that Art. 21(4) concerned medical research. He conceded that adding another article on data revealing inherited characteristics may be a possibility.[18] In the debates in the upper house, MP Schuyer took up this question, observing that no exemption was subsequently included in Art. 21(4) in favour of criminal investigations.[19] The Minister of Justice repeated his previous answer. As regards market and policy research, the Minister confirmed that such research would indeed be covered by the exemptions.[20]
 

III. Third-Generation Statutory Law

The Netherlands adopted third-generation data protection law including implementing the GDPR through the Personal Data Act 2018
 
Special Expression Derogation
The data protection principles and the need for legal basis for processing continue to apply to special expression. Processing for journalistic purposes of academic, artistic or literary forms of expression are exempted from all of the other substantive data protection provisions and also DPA supervision (art. 43(1)-(2)). Derogation from the criminal-related and other sensitive data rules is subject to the minimal requirement that the processing of such data must be necessary (art. 43(3)).[21]  These special expression provisions do not explicitly establish their priority over the knowledge facilitation framework.
 
Broad Expression
There is no specific provision. However, article 41 of the Dutch law does enable the controller to derogate from all of the transparency rules and control rights set out in Articles 12-21 and also 34 of the GDPR insofar as this is necessary and proportionate to ensure inter alia rights and freedoms.
 
Personal Exemption – see GDPR, art. 2(2)(c)
 
Knowledge Facilitation Framework – see also GPDR, art. 5(1)(b) (compatibility), art. 5(1)(e) (time limits) and art. 89(1) (appropriate safeguards)
The Dutch data protection law specifically allows the controller to authorize derogations from Arts. 15, 16 and 18 GDPR for processing carried out for scientific research for statistics so long as the controller has taken necessary measures to ensure that the data can only be used for these purposes (art. 44). Archiving in the public interest under the Archives Act 1995 is similarly exempted also fromt he right to data portablity (art. 20 GDPR) but is stated that, unless requests for access were so unfocused that could not reasonably be granted, data subjects still had a right to inspect records and to add their own statement in the event "incorrect" data is recorded (art. 45). Sensitive data can be processed for scientific or historical research or statistical purposes, if (a) the processing is necessary in accordance with Art. 89 GDPR; (b) serves the general interest; (c) express consent of the data subject is impossible or would require disproportionate efforts or costs; and (d) privacy of the concerned data subject is not disproportionately prejudiced (art. 24).  Article 28(2)-(3) similarly specifically authorises the processing of genetic data where necessary for scientific research serving a public interest or statistics if safeguards are applied such that the privacy of the data subject is not disproportionately harmed and, unless this proves impossible or requires a disproportionate effort, explicit consent is obtained.
Parliamentary Debates
Special Expression Derogation
In the explanatory memorandum accompanying the legislative proposal implementing the GDPR, the value of the freedom of expression in a democratic society was emphasized. It was observed that due to the conflicting rights to personal data protection and to the processing of personal data for journalistic, artistic and literary purposes, it was ‘undesirable for the Regulation to apply to journalistic, artistic and literary activities’.[22] Noting that there was no hierarchy between fundamental rights, the explanatory memorandum discusses three changes made to the data protection regime previously in place. First, it elaborated that it would broaden the special expression derogation to include academic forms of expression, aligning it with the derogations granted to journalistic forms of expression. Second, while deciding that it would largely maintain the regime in place as regards data processing for journalistic purposes, it would broaden the exemption to encompass the right of the data subject to withdraw consent at any time and make the submission of a code of conduct voluntary. Finally, it introduced a provision which subjected the processing of data relating to criminal convictions or offenses for journalistic, literary or artistic purposes to strict conditions. This provision was introduced to ensure the continuation of the previous regime.[23]
Pursuant to the Report of the Justice and Security Committee, the members of the green-left (GroenLinks)faction asked the government to reconsider art. 43 of the implementing act. The faction argued that as the GDPR strengthened data subject rights, maintaining the existing regime protecting the processing of data for journalistic purposes would in fact weaken the rights of journalists.[24] The government responded that as these strengthened rights were largely excluded from applying to the processing of personal data for journalistic purposes, maintaining the existing regime would not in fact (further) restrain journalistic practice.[25]
 
In the plenary debate, the green-left  request to broaden the exemption for the processing of journalistic purposes was reiterated by MP Buitenweg (GroenLinks) and Van Nispen (Socialist Party). In response, Minister Dekker noted that he did not share their concern. A too broad journalistic exemption would in fact defeat the purpose of the GDPR. Buitenweg MP once again maintained that the leeway granted by the GDPR in this respect was not fully used and that the European Court of Human Rights had a broader definition of what constitutes journalism than the implementing law. In response, the Minister Dekker argued that the balance achieved between the conflicting rights was appropriate.[26] A proposed amendment in this regard was not adopted.[27]
 
The Minister of Justice reiterated his arguments in a letter in response to three proposals made by the NPD News Media.[28] The NPD requested to exclude processing for journalistic purposes from the general provisions, including those on the scope of application and definitions and the rules on ‘privacy by design’ and ‘privacy by default’ as well as objected to the application of the transparency requirements pursuant to Art. 5 GDPR. However, insisting that the proposed law appropriately balanced the rights at stake, the Minister rejected these concerns, noting that the processing of personal data for journalistic purposes was excluded from the said general provisions.[29]
 
In the Senate, the VVD (People’s Party for Freedom and Democracy) faction asked how the terms ‘journalistic’, ‘academic’, ‘artistic’ and ‘literary’ are defined. The SP faction repeated the question already discussed in the Lower House regarding the extent of the derogation for journalism in the proposed law in comparison to the leeway given to countries by the GDPR. It was, moreover, reiterated that the NPD Nieuwsmedia and the Dutch Association of Journalists feared an imbalance between the right to data protection and the journalistic freedom of expression and information.[30] The government, in turn, reiterated its arguments that the proposed law adequately balances these two rights in the spirit of the GDPR, protecting the journalistic freedom of expression while at the same time protecting data subjects’ right to privacy to the extent possible.[31]
 
Knowledge Facilitation Framework
With regard to the processing for scientific purposes, the explanatory memorandum elaborated that the existing regime would remain in place.[32]
 

[1] Handelingen Tweede Kamer van 2 september 1987, p. 97-5008.
[2] Handelingen Eerste Kamer van 27 December 1988, p. 14-563.
[3] Ibid, p. 14-586.
[4] Handelingen Tweede Kamer van 1 september 1987, p. 96-4955.
[5] Handelingen Tweede Kamer van 2 september 1987, p. 97-5008.
[6] Handelingen Tweede Kamer van 3 september 1987, p. 98-5043.
[7] Ibid, p. 98-5038.
[8] Ibid, p. 98-5048 and 98-5049.
[9] Report of the Parliamentary Commission of Justice and Internal Affairs of 3 June 1998.
[10] Ibid.
[11] Ibid. .
[12] Ibid.
[13] Handelingen Tweede Kamer van 17 november 1999, nr. 25 892, p. 23-1692.
[14] Ibid., p. 23-1700.
[15] Ibid.
[16] Ibid., p. 23-1697.
[17] Handelingen Tweede Kamer 18 november 1999, nr. 25 892, p. 24-1797.
[18] Ibid., p. 24-1798.
[19] Handelingen Eerste Kamer 3 July 2000, nr. 25 892, p. 34-1603 & 34-1604.
[20] Handelingen Tweede Kamer 18 november 1999, nr. 25 892, p. 24-1798.
[21] Netherlands, Wet van 16 mei 2018 Uitvoeringswet Algemene verordening gegevensbescherming, arts. 43(1)-(2).
[22] Tweede Kamer der Staten-Generaal, ‘Memorie van Toelichting’ (Vergaderjaar 2017-2018) https://www.tweedekamer.nl/debat_en_vergadering/commissievergaderingen/d... (last accessed 20 August 2020), 49.
[23] Ibid, 123-125.
[24] Tweede Kamer der Staten-Generaal, ‘Verslag’ (31 January 2018) https://www.tweedekamer.nl/debat_en_vergadering/commissievergaderingen/d... (last accessed 13 December 2020) 19.
[25] Tweede Kamer der Staten-General, ‘Nota Naar Aanleiding Van Het Verslag’ (14 February 2018) https://www.tweedekamer.nl/debat_en_vergadering/commissievergaderingen/d... (last accessed 13 December 2020) 74.
[26] Tweede Kamer der Staten-General, ‘Algemene Verordening gegevensbescherming’ (8 March 2018) https://www.tweedekamer.nl/debat_en_vergadering/plenaire_vergaderingen/d... (last accessed 13 December 2020).
[27] Tweede Kamer der Staten-General, ‘Amendment van het lid Buitenweg over het maximieren van de journalistieke exceptie’ (13 March 2018) https://www.tweedekamer.nl/kamerstukken/amendementen/detail?id=2018Z0402... (last accessed 13 December 2020); this amendment would have completely exempted the processing of personal data for journalistic purposes—not literary or artistic purposes—from the application of all articles in the Data Protection Act, with the exception of Articles 1 to 4 and 5(1) and (2).
[28] This organization represents the journalistic and business interests of Dutch media companies, see https://www.ndpnieuwsmedia.nl/brancheorganisatie/ (last accessed 13 December 2020).
[29] Tweede Kamer der Staten-Generaal, ‘Brief van de Minister Voor Rechtsbescherming’ (1 April 2019) https://www.tweedekamer.nl/kamerstukken/brieven_regering/detail?id=2019Z... (last accessed 13 December 2020).
[30] Eerste Kamer der Staten-Generaal, ‘Voorlopig Verslag van de Vaste Commissie Voor Justitie En Veiligheid’ (10 April 2018) https://www.eerstekamer.nl/9370000/1/j9vvkfvj6b325az/vknemyvii0z2/f=y.pdf (last accessed 13 December 2020).
[31] Eerste Kamer der Staten-Generaal, ‘Memorie van Antwoord’ (18 April 2018) https://www.eerstekamer.nl/9370000/1/j9vvkfvj6b325az/vknmharswjte/f=y.pdf (last accessed 13 December 2020).
[32] Memorie van Toelichting (n 22) 125-126.