On 22 November 2017, the District Court of The Hague dismissed a legal challenge that was brought against the Authority for Consumers and Markets (ACM) in preliminary relief proceedings. In the course of an inspection, the ACM had made a copy of (virtually) all data on the business mobile phones of six employees who worked for the company subject to the inspection. The Court ruled that the ACM was permitted to do so.
The District Court first of all acknowledged that the amount of data stored on the six mobile phones combined was substantial. It was therefore not possible for the ACM to select the relevant business data at the premises of the company during the inspection, which meant the selection had to be made at a later date after the data had been copied. Although this meant that private data stored on the devices was also copied, the District Court did not consider this to be unlawful. The interests of the ACM investigation outweigh the right to privacy, provided there are sufficient guarantees to prevent the ACM from inspecting the data without being entitled to do so.
Such guarantees must conform with the principles set out in the Vinci-judgment of the European Court of Human Rights [see our May 2015 Newsletter]. This means that after the inspection, the person subject to the investigation must be given the opportunity to challenge in a concrete and effective manner the lawfulness of the seizure and must be able to request the return or destruction of the digital data.
The District Court then assessed whether the ACM's procedure for inspecting digital data - as set out in their manual (the "ACM Werkwijze voor onderzoek in digitale gegevens") - provides these guarantees. The first selection by the ACM takes place automatically as search terms are applied to the copied data. The ACM officials will not glance through non-selected data and to a certain extent the company can influence the search terms that are applied because it will receive a list of applied search terms and will be given the opportunity to react to this list. The company then receives a copy of the selected data and both the company and the owners of the mobile phones will be given the opportunity to indicate which data is private and thus wrongly selected. According to the ACM, they are not required to provide extensive reasons for their objection and if the ACM does not agree they can bring the issue before a court. The District Court therefore concluded that the ACM procedure provides sufficient guarantees.
In the judgment, the District Court ruled that the ACM's procedure for inspecting digital data provides sufficient guarantees to prevent the ACM from inspecting digital data to which it is not entitled. The ACM was therefore allowed to make a copy of (virtually) all data on the mobile phones and bring such a copy to its premises for further selection and inspection.
This article was published in the Competition Law Newsletter of January 2018. Other articles in this newsletter:
1. Court of Justice: Suppliers of luxury goods may prohibit their authorised distributors from selling on third party internet platform
2. Court of Justice dismisses appeal by Telefónica on non-compete clause in telecoms transaction