Lawsuit over privacy violation NS OV-chipkaart

NS makes traveller pay extra for privacy. Subscriber takes action in court.

On 7 July 2016, a multiple chamber of the Gelderland District Court will consider the question of whether the Personal Data Authority (formerly the Dutch Data Protection Authority) may refuse to enforce when train travellers with a concessionary 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 CBP (now: AP) in February 2015. However, the CBP refused to intervene.

With effect from 9 July 2014, NS Reizigers BV has made it impossible for season ticket holders to buy a paper ticket that is checked in the train together with their season ticket. NS only allows those who want to travel at discounted rates in the advantage hours to do so if they check in and out with a personal public transport chip card that also shows their identity. As a result, travellers will only receive benefit-hour discounts if they have all their travel movements registered by NS using their personal OV-chip card. If they wish to maintain their privacy, they will lose their benefit-hour discount.

Jonker perceives the fact that a traveller with privacy in benefit hours has to pay more than a traveller without privacy as a form of discrimination. "I want to be able to use public transport like I used to without a company or the government being able to track exactly where I have been at any given time. That is also what the anonymous OV-chipkaart is for. But it is discouraged in this way. An unjustified distinction is made between people with privacy and people without privacy. People who want to keep their privacy have to pay more. That is discrimination."

According to Jonker, discrimination is particularly bad when it is used as a means of pressure. "NS is trying to force me to make my private travel data available for commercial purposes." The European Convention on Human Rights prohibits all discrimination, but Dutch law only prohibits discrimination on 12 specific points. One of these is a person's philosophy of life. Jonker: "I explained to the Human Rights Board that respect for everyone's private sphere is part of my philosophy of life. But according to them, enlightened humanism is not a philosophy of life. I find that absurd."

Jonker also objected to the way NS transferred his personal data to Trans Link Systems (TLS). "NS says I have a contract with TLS, but that's nonsense. I never entered into such a contract; no train passenger has. NS has changed its general terms and conditions. But NS cannot legitimately include in its general terms and conditions that I would suddenly have entered into a contract about my personal data with a third party. You see here how the so-called privatisation of a public service, public transport, leads to unlawful practices."

Jonker is supported in this lawsuit by the Privacy First Foundation and Society for Better Public Transport.

Privacy First update, 5 July 2016: the court hearing will take place on Thursday, July 7, at 10.40am at the District Court of Gelderland (location Arnhem), click HERE For directions. Case number: ARN 15 / 5542 (Jonker vs CBP; rejection of enforcement request OV-chipkaart). Dutch Railways (NS) and Trans Link Systems (TLS) have been identified by the court as interested parties for the time being and will participate in the court hearing in that capacity.

See also the following news sources:

Security.co.uk, 1 July 2016: https://www.security.nl/posting/476407/Treinreiziger+die+korting+en+privacy+bij+NS+wil+naar+rechter 

Nederlands Dagblad, 2 July 2016: https://www.nd.nl/nieuws/nederland/rechtszaak-om-schending-privacy-met-ov-chipkaart.1848969.lynkx?s=XZIXsSB2lB-7eer9r0xlqg== (also in paper edition, p. 2)

NOS, 7 July 2016: http://nos.nl/op3/artikel/2115951-ik-wil-met-een-anonieme-ov-chipkaart-met-korting-reizen.html

Omroep Gelderland, 7 July 2016: http://www.omroepgelderland.nl/nieuws/2112922/Arnhemmer-strijdt-voor-anonieme-voordeelurenkaart-NS

RTL News, 7 July 2016: http://www.rtlnieuws.nl/nederland/arnhemmer-naar-rechter-ns-laat-je-meer-betalen-voor-je-privacy

TROS Radar, 7 July 2016: http://radar.avrotros.nl/nieuws/detail/ook-met-een-anonieme-ov-chipkaart-wil-ik-korting-bij-ns-krijgen/

Telegraph, 8 July 2016: http://www.telegraaf.nl/dft/geld/consument/26170823/___NS_benadeelt_anonieme_reiziger___.html (also in print edition, Interior section, p. 12)

Society for Better Public Transport, 4 and 11 July 2016: http://voorbeterov.nl/goedemaandagmorgen

Radio:

Interview with Michiel Jonker at Amsterdam FM, 5 July 2016: http://www.amsterdamfm.nl/ns-laat-reizigers-betalen-voor-privacy/

Interview at Radio Gelderland, 7 July 2016: {mp3}Radio_Gelderland_7juli2016{/mp3}
Interview at Radio 1 (NOS), 7 July 2016:

{mp3}Radio1_NOS_7juli2016{/mp3}

Privacy First update, 7 July 2016: the court hearing today was relatively thorough and lasted almost 3 hours (three times longer than planned by the court). NS was admitted by the court at the beginning of the hearing to participate in the proceedings as an interested party. However, Trans Link Systems (TLS, the 'company behind the public transport chip card') was still (rightly) declared inadmissible by the court. Click HERE for Michiel Jonker's pleading note (pdf). The court's ruling is tentatively scheduled for 18 August next, but may be postponed due to the complexity of the case.

Update 16 August 2016: Today, the Gelderland court issued a positive ruling, click HERE for our news release and initial commentary by Michiel Jonker.