Media Report reported earlier (in Dutch) about the consideration of the Rotterdam Court, which has ruled that information regarding the price history of a house cannot be regarded as personal data. This article provides a more extensive analysis of the ruling.
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 or “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.
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.