Privacy infringement lawyer
A privacy infringement is any intrusion into your private life or your personal data for which the person responsible has no justification. You can hold that person liable, demand removal and, in some cases, claim damages.
Someone has published a photo of you that you never released. Your medical file was left open at your employer’s. An ex posts intimate images online. Or your address details turn up in a file that has leaked. What these situations have in common is that someone else has dealt with your data or your private life when they had no right to.
The question that counts is not whether it is upsetting. It is whether you can do something about it legally, and which route works fastest.
We act for the party whose privacy has been infringed. Private individuals, makers and artists, and organisations held liable after something has gone wrong on their watch.
Has something about you been published or leaked? Call +31 20 675 88 21 or get in touch. With online publications speed matters, because every day something stays findable adds to the harm.
What counts as a privacy infringement?
There is no closed list. Broadly, two tracks run alongside each other.
The first is the GDPR. That covers personal data processed without a valid legal basis, kept longer than permitted, or ending up with people who have nothing to do with it. A data breach at an organisation you entrusted your data to falls into this category.
The second is your right to respect for your private life, set out in Article 10 of the Dutch Constitution and in Article 8 ECHR. That covers covert camera surveillance, following someone, disclosing details from someone’s private life, and publications in which a person is recognisably depicted. Image rights and privacy touch constantly here.
In many cases both tracks are in play at once. Each has its own route and its own test, and that partly determines which step will achieve the most.
Is a privacy infringement a criminal offence?
Sometimes. The Dutch Criminal Code covers a number of relevant offences. Filming covertly in a home or other non-public place is an offence, as is publishing sexual imagery without consent, commonly known as revenge porn. Stalking is covered too, including systematically following or spying on someone. The same goes for defamation, on which you can read more on our page about defamation and calumny.
In those cases you can report the matter to the police. Bear in mind that the Public Prosecution Service decides for itself whether to prosecute, and that criminal law does nothing about removal or compensation for your loss.
Most privacy infringements are not criminal offences, but they are unlawful. That is where the civil route comes in, and that route is one you control yourself.
Can you sue someone for infringing your privacy?
Yes. You can hold the responsible party liable under Article 6:162 of the Dutch Civil Code and, where personal data is involved, under Article 82 GDPR.
The court carries out a balancing exercise. Your right to a private life sits opposite the other party’s right to freedom of expression, or an interest such as security or criminal investigation. Neither wins in advance. What tips the balance are the circumstances. How sensitive was the information, how wide was the reach, was there a matter of public concern that deserved attention, and could the same aim have been achieved in a less intrusive way?
Where a publication is involved, that test largely tracks the assessment of an unlawful publication.
What damages can you claim?
Financial loss is recoverable if you can substantiate it, for example lost income or costs you have had to incur.
Non-material loss is more nuanced. The Dutch Supreme Court requires you to make it plausible that you have been affected in your person, and unpleasant feelings alone are not enough for that. Where there is a serious intrusion into your private life, the court accepts that more readily. The sums awarded in the Netherlands are modest, certainly compared with what people tend to expect.
We say something honest about that at the start of a case. Removal, a rectification or a ban on further use is often worth more than the amount left at the end of the road.
What can a lawyer do for you?
Letter of claim and removal
The first step is usually a letter of claim to whoever is responsible, with a concrete deadline. With online material we also address the platform or the hosting party, which becomes liable once it knows unlawful material is there and fails to act. A request for removal from Google search results is another option.
Summary proceedings
If a letter of claim gets nowhere, summary proceedings are often the route to take. There you can claim removal, a ban on further publication and a rectification, backed by a penalty payment. A ruling usually follows within a few weeks.
Establishing liability and recovering loss
Separately from removal, we can hold the responsible party liable for the loss. Where a data breach at an organisation is involved, we first establish what actually happened, whether it was reported in time and whether security was up to standard. What is expected of an organisation is set out in what to do in the event of a data breach.
Complaint to the Dutch Data Protection Authority
Where personal data is involved, you can also lodge a complaint with the Dutch Data Protection Authority. That is free of charge and it can apply pressure. It will not get you damages, though, and the regulator takes up only a fraction of the complaints it receives.
Exercising your rights as a data subject
Sometimes the quickest route is to use your right of access and your right to erasure. That tells you what data exists and who holds it, which often forms the basis for the steps that follow.
Want to know how strong your position is? Get in touch or call +31 20 675 88 21 for an initial assessment.
