Court: Personal Data Authority must investigate privacy at OV-chipkaart
This week, the Gelderland District Court ruled on the question of whether the Personal Data Authority (AP; formerly the Dutch Data Protection Authority) may refuse to enforce without investigation when train travellers with a benefit-hours season ticket are forced by NS to pay extra if they want to maintain their privacy.
Two years ago, NS abolished paper train tickets and required all travellers to use an OV-chip card from now on. It turned out that travellers who opted for an anonymous OV-chip card for reasons of privacy would not receive a benefit-hours discount from NS - even if they had held a benefit-hours season ticket for many years. Arnhem resident Michiel Jonker objected to this. After proceedings at the Geschillencommissie-OV, he submitted an enforcement request to the AP (then called CBP) in April 2015. However, the AP refused to intervene. Thereupon, Jonker went to court.
In the ruling, ECLI:NL:RBGEL:2016:4553, the judge argued that the enforcement request should at least have prompted the AP to investigate the matter on a number of points raised by Jonker:
- In the court's view, the AP did not sufficiently examine whether the data processing complies with the principles of proportionality and subsidiarity. The principle of subsidiarity requires that if there is a possibility to achieve a certain goal in a way that preserves, or less affects, privacy, that way should be chosen.
- The court also noted that the ability to travel anonymously is an aspect of the OV-chipkaart system. Jonker: "From this I deduce that the court, like me, believes that a monopoly on a basic service such as public transport should not be abused to strip people of their privacy without necessity."
- The court held that, also given the principled nature of the question before it, there were in any case compelling grounds to launch an investigation as referred to in the AP's Enforcement Policy Rules. Jonker: "I am pleased that the court explicitly endorsed this part of my argument in its ruling."
Jonker says he is pleased that the court has made it clear that his request for investigation and enforcement should be taken seriously by the Personal Data Authority, and not simply dismissed. "I hope this will lead to a new attitude at the AP, where the AP will actually live up to its nominally independent position and do its job."
Asked whether he is considering appealing, Jonker said: "I have a good feeling about the ruling in itself, but I want to study it more closely before making a decision. The fact that the court has not yet immediately ruled that enforcement should take place, but that more research needs to be done first, causes a delay, which means that I, as a season ticket holder, may be discriminated against by NS for the time being. In any case, I think it is very important that the AP's investigation will be thorough, transparent and insightful. Given the AP's previous stance, that is not a given. So I am going to follow that closely."
Privacy First supports the goal of this lawsuit: anonymous discounted travel without privacy discrimination. After all, privacy is a universal human right. People should not have to pay extra for that right.
The case enjoys broad support among the Dutch population, as numerous positive comments at Privacy First and on social media have shown in recent weeks. 81% of people therefore agree with the statement "It is ridiculous that you only get discounts on trains with a personal OV-chip card", according to a current opinion poll at daily newspaper De Gelderlander. The website Treinreiziger.nl has now even featured Michiel Jonker nominated for the annual Happy Traveller Award.
Below is a current media overview (in chronological order):
Press release district court Gelderland, 17 August 2016: Personal Data Authority to step up investigation into NS travel data recording
Security.co.uk, 17 August 2016: Regulator to investigate NS travel data registration
RightsNews.co.uk, 17 August 2016: Personal Data Authority to step up investigation into NS travel data recording
Omroep Gelderland, 17 August 2016: Train passenger from Arnhem proves right: more investigation into NS' recording of travel data
The Gelderlander, 17 August 2016: Additional investigation into travel data recording
NU.co.uk, 17 August 2016 (including NS response): Privacy watchdog must investigate travel data recording by NS more closely
Tweakers.net, 17 August 2016: Privacy regulator must investigate anonymous discount travel
OV-Magazine, 17 August 2016: Judge: investigation into anonymous rebate.
Treinreiziger.co.uk, 18 August 2016: Traveller gets it right: investigation into NS privacy
Treinreiziger.co.uk, 18 August 2016: Opinion: Michiel Jonker deserves traveller's award.
Weblog SOLV Lawyers, 19 August 2016: Privacy a passed station for NS? (with commentary Michiel Jonker)