Lawsuit against refusal of cash by cinema
Michiel Jonker: "Cash payment safeguards the privacy of moviegoers."
Arnhem privacy activist Michiel Jonker has filed an appeal with the Gelderland District Court against the Personal Data Authority's (AP) refusal to take enforcement action against arthouse cinema Focus Filmtheater in Arnhem's refusal to accept cash payment. The cinema has been demanding debit card payment when purchasing movie tickets at the box office since moving into a building that cost millions. In doing so, the cinema forces visitors to have their personal data processed.
Jonker disagreed and for that reason filed an enforcement request with the AP in August 2018. The AP rejected that request in November 2019 because, according to the AP, no one is obliged to accept cash as legal tender. The AP also argued that through its terms and conditions, the cinema establishes a "contract" with moviegoers, from which a need would arise to process personal data of moviegoers.
According to Jonker, however, in the case of over-the-counter payments, there is indeed a duty to accept cash in a number of cases. He cites information from an expert at the Dutch Central Bank. "Focus Filmtheater is an arthouse cinema that shows films on sensitive issues, and is nota bene partly funded by public money," Says Jonker. "This is about people's social participation. It should not be possible for retrospective profiling to find out which films someone has shown interest in over time. If this cinema is allowed to refuse privacy-friendly cash payments, then that is the signal that everyone should be allowed to depend on non-anonymous methods of making payments - via pin or via the internet. Then you have to start thinking about what conclusions other people, authorities or automated systems may draw about your choice to see or not see certain films. That gives this case a big charge."
In the documents requested by Jonker in the objection procedure, he also found evidence of insufficient safeguards in relation to personal data collected through the cinema's website. "If you buy a cinema ticket, your data may be processed by at least seven companies in five countries. One of those companies is Google, and the fine print in Google's terms and conditions gives that company very wide latitude to share the collected data with third parties in just about any country in the world. It is not clear whether timely and adequate anonymisation will take place. As it stands, it is a licence for privacy invasion."
For the full text by Jonkers appeal, click here (pdf, 94 pp).
Privacy First supports Jonker in the case.
Security.co.uk, 7 January 2020: Lawsuit over Arnhem cinema refusing cash
Privacyweb, 7 January 2020: Lawsuit against refusal of cash by cinema
Sargasso.co.uk, 8 January 2020: Lawsuit against refusal of cash by cinema
FOK News, January 8, 2020: Lawsuit against refusal of cash by cinema
AVROTROS Radar, 8 January 2020: Not being able to pay cash: invasion of privacy? (including opinion poll)
Potkaars.co.uk, 8 January 2020: Michiel Jonker - War on Cash at the Cinema (video interview and podcast)
Café Weltschmerz, 8 January 2020: Profiling based on cinema attendance - Rico Brouwer and Michiel Jonker (video interview)
Emerce, 10 January 2020: Lawsuit against refusal of cash by cinema
De Gelderlander, 16 January 2020: Privacy fighter continues to fight for paying with cash at movie house in Arnhem
FOK News, 17 January 2020: Q&A with privacy activist Michiel Jonker.
Tweakers, 6 February 2020: Interview with Michiel Jonker - privacy activist out of idealism and irritation.
Update 7 February 2022
The Gelderland District Court will hear Jonker's appeal at a hearing on 8 February 2022. Jonker will participate via a video link due to Covid-19-related circumstances. Since the filing of the appeal in January 2020, it has taken more than two years until the court hearing, partly because in August 2021 the court was not yet able to establish a sufficiently privacy-friendly video connection that does not require the litigant to create an account through which personal data may end up outside the EU. Therefore, the court agreed to postpone the hearing until after the introduction of a video connection via Microsoft Teams (early 2022).
Jonker: "In the meantime, a lot has happened. I will participate in this court hearing with very mixed feelings. During last year (2021), my faith in the Dutch judiciary was shaken. This was because of a number of court rulings in other privacy cases, which showed that judges stretch the law to the point where it no longer offers any real protection. But also by how Dutch judges took a stance on the government's violation of fundamental rights by invoking the corona-crisis, in cases where there was no medical necessity to do so. In both those privacy cases and those corona cases, you saw exactly the same attitude among judges. They gave the most powerful party all the room it needed to violate fundamental rights and retreated deeply into their shells themselves, for which they would then present fine excuses, for instance by referring to "restrained review". Because this is now apparently considered normal behaviour in the Dutch judiciary, I no longer have faith in our judiciary, not even when it comes to the case that will now be heard. But it is of course possible that, due to increased social dissatisfaction with increased lawlessness, they will still show a bit more judicial commitment this time. I am very happy, for instance, that the just-started petition for abolition of corona access tickets (CTBs) has already been signed 500,000 times within two days. Even if judges are not interested in substantive arguments, perhaps such a numerical argument can still make them think."
Another development that worries Jonker is the initiatives taken at both Dutch and European level over the past two years to achieve "digital money" (CBDC) and a "digital identity" for all EU citizens. Jonker: "It seems that under cover of an ever-prolonged corona crisis, governments want to digitise some fundamental things in order to gain access to crucial personal data of all residents. A technocratic surveillance state is being rigged. This makes my defence of the right to pay in cash all the more relevant and urgent. It is similar to the CTBs: if you are excluded from participating in society when you do not join a government programme, then in practice we have lost our freedom. In this case, if you don't pay digitally, you are locked out of the opportunity to watch current critical films."
For the text by Jonkers Pleading note "Privacy and cash payment - Lost trust" click here (pdf, 8 pp). The court indicated that Jonker was not allowed to read this pleading at the hearing. He is, however, allowed to supplement it. He indicates that he will do the latter.
Security.co.uk, 8 February 2022: Lawsuit against refusal of cash by Arnhem cinema
De Gelderlander, 8 February 2022: Arnhem privacy activist refuses to pin for cinema ticket, coronapas comparison
Security.co.uk, 9 February 2022: How promising is the case against the Personal Data Authority on the refusal of cash by Arnhem cinema?
Potkaars.co.uk, 11 February 2022: video of court hearing and video of interview Rico Brouwer with Michiel Jonker
Argus, 16 February 2022: The privacy of a cinema ticket (p. 5, pdf).
Update 24 May 2022
On 16 May 2022, the Gelderland court ruling done in the case. Jonker's appeal was declared unfounded. The court essentially put forward three reasons for this:
- the cinema's aim to increase security by refusing cash is justified;
- this goal is also achieved, in the court's opinion, by the refusal of cash payment;
- through the general terms and conditions when purchasing a cinema ticket at the counter (which count as a "contract"), the cinema may also enforce this, invoking Article 6(1)(b) of the AVG, which speaks of a legal basis for processing personal data if there is the "necessity for the performance of a contract".
Jonker: "With this ruling, the abolition of cash is another step closer. Any shopkeeper or pub owner can now say: my aim is to promote security by refusing cash. And then, according to the court, it is fine. Even if no security problem has been demonstrated. The court ignores everything I put forward with reference to the book 'Legal aspects of cash' - written by an expert from the Dutch Central Bank. The court also ignores Article 5(2) of the AVG, which states that a necessity for processing personal data must be demonstrable. The court is basically saying that the cinema's desire or purpose to do it this way should be equated with a necessity to do it this way, as long as the cinema writes it down in its general terms and conditions, which then count as a contract. This is a license for arbitrariness. Cash payment may be refused in this way for completely subjective reasons, even if it affects customers' privacy. The cinema only has to put a magic word in its mouth, such as safety, efficiency, hygiene or whatever - and then that supposedly immediately creates a 'legitimate, well-defined and explicitly defined purpose' and thus also a 'necessity' to process personal data through debit card payment."
Asked what he will do next, Jonker said: "It has been clear to me for some time that we do not live in a constitutional state in the Netherlands, at least when it comes to privacy, but also a number of other fundamental rights are not seriously protected by our judges. During the hearing, these judges asked good questions, they know perfectly well what is at stake here. But still they do this. They follow a certain script and ignore everything else. I think they can look in the mirror at night with as much pride as their Russian and Chinese colleagues. In my view, this kind of justice is all akin to the justice of a 'kangaroo court', it is no more than the pretence of justice - the emperor has very few clothes left on. In view of this, I must now first make up my mind whether to appeal.
The Council of State has already made it clear in other privacy lawsuits I have filed that it follows the same script of agreeing to contractual arbitrariness. So I am under no illusion that it will rule in my favour on appeal. So it only makes sense to appeal if I am then also willing to go to the European Court of Human Rights (ECtHR), as I recently did in a case on privacy in public transport. But going to the ECtHR again only makes sense if I have suffered demonstrable damage, otherwise my case will not even be considered - and then suddenly something does have to be demonstrated very clearly, the judges apply two vastly different yardsticks on this issue.
The controller does not have to prove anything, but the citizen whose data is being processed does. The question then is whether the fact that I can no longer go to my local arthouse cinema because I want to maintain my privacy is considered a ' significant disadvantage' by the ECtHR. Is it a significant disadvantage to lose that opportunity to participate in society? There is also then the question of what evidence the ECtHR requires of me. How can I prove that I did not do something because it would affect my privacy? In short, it could very well be that despite that nice European Convention on Human Rights and despite that nice AVG, I am still disenfranchised when all is said and done. But even in that case, it might be useful to go to the ECtHR, to show and record that even a citizen who does everything possible is still not protected. And that Dutch as well as European judges are fine with abolishing cash payments without an equally privacy-friendly alternative. I will seek advice on this."
If Jonker decides to appeal, Privacy First supports him in doing so. Contact requests for Michiel Jonker can be made through Privacy First.
Update 22 June 2022
Jonker filed an appeal with the Administrative Law Division of the Council of State on 20 June.
Jonker: "It was a rush job due to lack of time. Since the court ignored almost the entire content of my appeal, I reinstated it in my appeal. I also responded to the court's considerations. And I requested the Council of State to submit preliminary questions on some crucial issues to the competent international or European court. I do not consider the chances that the Council of State will do so very high, because I have already considered the possibility of such preliminary questions in other court cases as well, without the Council of State doing anything with it. All I can do is draw attention to that possibility.
I see this appeal mainly as a necessary step to gain access to the European Court of Human Rights. But of course, I could be wrong and this time judges of the Council of State could suddenly take the grounds for my appeal seriously. In any case, this way I continue to defend two things: on the one hand, the preservation of cash as a legal and also accessible means of payment, and on the other hand, the recognition that a privacy-friendly means of payment should not be refused without an equally privacy-friendly alternative and thus ultimately abolished."