The Supreme Court has, by means of a section 81 Judiciary (Organization) Act [Wet op de rechterlijke organisatie – RO] decision, ruled on 27 June 2017 (implicitly) that the processing of camera images does not imply processing of “ethnicity data”.
Handing over of debit card transaction images
In the context of an investigation into aggravated theft, a Public Prosecutor (PP) had requested the submission of camera images of a particular debit card transaction from Holland Casino. It was argued on behalf of the defendant that the PP had no power to do this without the authorisation of the examining judge.
Distinction powers to claim information
The Code of Civil Procedure (CCP) sets out, inter alia, that investigative bodies can request information from third parties. The framework for this has been exactly worded.
The two relevant sections are section 126nd CCP and section 126nf CCP. The last section is intended for the “more serious cases” and for that reason requires the authorisation of the examining judge.
Section 126nd paragraph 2 CCP states that the claim cannot relate to “personal data relating to a person’s religion or personal beliefs, ethnicity, political affinity, health, sexual orientation or membership of a trade union”. The more onerous regime therefore applies to requests for special personal data.
Camera images: special or not?
The question is therefore whether camera images contain special personal data.
In the past the Supreme Court had ruled that this was the case.
In the CCTV monitoring policy rules 2016 of the Dutch Data Protection Authority (PA) the PA took a more moderate view stating that the images only qualify as special personal data if they are used to make a distinction on the basis of such special personal data.
In his conclusion the advocate general had already concluded that it would be a little “excessive” to judge that each photo/video per definition contains special personal data. As he sees it, the law must rather be interpreted in such a way that it must be prevented that data is too easily provided and processed with the view to filter specifically on special personal data.
Supreme Court: 81 Judiciary (Organisation) Act
The Supreme Court rejects the appeal with reference to section 81 Judiciary (Organisation) Act.
In the annual report of the Supreme Court 2016 this section is described as follows:
This means that for reasons of the development of law and unity of law, there is no reason to give further reasons for the rejection. This can be the case if the opinion of the advocate general has provided sufficient clarity.
Therefore it could well be possible that the Supreme Court agrees with the advocate general and that too strict an interpretation of the term special personal data is indeed “excessive”. However, this always remains a bit of a guess with section 81 issues….
By Mark Janssen