The Netherlands

On behalf of the team

The Stop Online Shaming (SOS) foundation and the Expertise Centre for Online Child Sexual Abuse (EOKM) have filed class actions against for the unauthorised publication of sex videos and photographs. The District Court held in its interlocutory judgement of 28 October 2020 that the case could be substantively adjudicated because the requirements of Article 1018c(5) of the Dutch Code of Civil Procedure had been met. [1]Amsterdam District Court 28 October 2020, case number C/13/690916 / HA ZA 20-284. This is one of the first cases in which this point has been decided under the new WAMCA. In this respect, the District Court held, inter alia, that the action was one of principle, which meant that lower requirements applied in determining whether there was a right of action. The District Court did assess, inter alia, whether it was sufficiently plausible that a class action would be more efficient and effective than individual actions in this case. The interests could be sufficiently bundled for that purpose. The foundations had also pointed out the diffidence of the parties involved as regards personally initiating proceedings against the website owner. After this decision, the District Court had to designate an exclusive representative (as referred to in Article 1018e of the Dutch Code of Civil Procedure), but came up against the fact that the claims had been lodged by two legal entities while the law does not regulate a joint request. The District Court dealt with this by designating SOS as the exclusive representative and ruling that EOKM (which focuses on minors) was also permitted to perform procedural acts. In this regard, too, the District Court decided that the decision had to be recorded in the central register, despite this not being prescribed by law.

By interlocutory judgment of 18 November 2020, the District Court supplemented its judgment of 28 October 2020, the reason being that the District Court should have decided ex officio on the provisions of Articles 1018f and 1018g of the Dutch Code of Civil Procedure, but neglected to do so. [2]Amsterdam District Court 18 November 2020, case number C/13/690916 / HA ZA 20-284 Article 1018f of the Dutch Code of Civil Procedure attaches a number of rules to the designation of SOS as exclusive representative, the purport of which is that the persons whose interests are being represented by SOS are informed of that designation and can consider their position (‘opt out’, paragraph 1, or ‘opt in’, paragraph 5). The District Court now added that the parties could comment on the practical details of the required notification to the persons whose interests are represented by the foundations, could comment on the necessity and usefulness of setting a time limit for a settlement period and could express any wish they may have to supplement the grounds of the claim. In that context, the District Court directed that advertisements regarding the class action had to be published in a number of national newspapers. The District Court gave the parties the opportunity to comment on the text of the advertisement and on the text that the District Court intended to publish on the website.