Ministry of Defense wins battle at Board of Appeal

In a recent ruling the Board of Appeal (BoA) ruled that the Advertising Code Committee (ACC) and the BoA may only rule that an advertisement violates the GDPR when this is abundantly clear.

Complainant’s granddaughter receives a letter from the Ministry of Defense with information about military service and a flyer that advertises working at Defense. The complaint argues that the Ministry violates the GDPR by processing personal data, as the address data for sending the conscription letter based on the law are also used for sending the flyer containing advertising.

The ACC and the BoA do not deal with the processing of personal data like the Dutch Data Protection Authority. However, Article 2 of the Dutch Advertising Code (DAC) states that advertising must be in accordance with the law. This requires an assessment: will the Data Protection Authority rule that sending out the flyer violates the GDPR? Only if the GDPR has been blatantly violated in the making of the advertisement, the advertisement can be considered "not in accordance with the law" under Article 2 of the Dutch Advertising Code. It is not certain that the Ministry of Defense violates the GDPR, so the advertisement cannot be struck down on the basis of Article 2.

The Ministry of Defense has thus won the battle at the BoA. A reprisal at the Dutch Data Protection Authority could turn out differently, as that authority does carry out a full GDPR assessment. By the way, the ACC and the BoA do not rule on an infringement of intellectual property rights or other unlawful acts either if such infringement or act cannot be established with certainty. This was already determined in 2009 in the Mojo/Heineken judgment.

Myrna Teeuw