AS TO THE ADMISSIBILITY OF
Application No. 24967/94
by Frederik Jan IJSPEERD
against the Netherlands
The European Commission of Human Rights sitting in private on
20 February 1995, the following members being present:
MM. C. A. N0RGAARD, President
H. DANELIUS
C.L. ROZAKIS
S. TRECHSEL
A.S. GÖZÜBÜYUK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
I. BÉKÉS
J. MUCHA
D. SVÁBY
E. KONSTANTINOV
G. RESS
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 May 1994 by
Frederik Jan IJSPEERD against the Netherlands and registered on
23 August 1994 under file No. 24967/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch national, born in 1971, and resides at
Gouda, the Netherlands. He is a student.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Pursuant to the Study Finance Act (Wet op de Studiefinanciering)
the applicant received a student pass for free public transport. It
appears that the limited liability company responsible for the
distribution and management of the student passes for free public
transportation (the Openbaar Vervoer Studentenkaart B.V., hereinafter
referred as "OVS"), which company has been created on the basis of an
agreement between a number of public and private organs and
organisations, in their mailings to students include advertising
brochures aimed at students.
In the spring of 1992 the applicant requested the OVS to refrain
from sending him advertising brochures in the future. Despite his
request, advertisement brochures continued to be included in the mail
the OVS sent him.
The applicant started civil proceedings against the OVS before
the District Court judge (kantonrechter) of Utrecht, arguing that the
continued sending of advertising brochures by the OVS constituted a
tortious act (onrechtmatige daad) and requested the judge to award him
2.450 Dutch guilders for non-pecuniary damages arising from this
tortious act.
In the proceedings before the District Court judge, the OVS
stated that it had never provided personal data to others for
commercial purposes, but had always included advertisement brochures
in its mail to students, as in this way the costs of the student passes
for free public transportation and of the information on its use can
be limited.
By judgment of 8 December 1993 the District Court judge found
against the applicant, holding that the sending of advertisement
brochures cannot be considered as a tortious act arising from a
violation of Article 8 of the Convention, since this sending cannot be
regarded as an interference with the applicant's right to respect for
his private life. The District Court judge found that commercial
utterances in sound, image and writing are normal in present day
society and can easily be ignored.
In view of the limited amount in damages claimed by the
applicant, no further appeal lies against this decision, whereas an
appeal in cassation would only be possible when procedural errors had
been committed, which did not appear to be the case.
COMPLAINT
The applicant complains that sending to him of unsolicited
advertising brochures constitutes an unjust interference with his right
to respect for his private life and home within the meaning of Article
8 para. 1 of the Convention.
THE LAW
The applicant complains that the sending to him of unsolicited
advertising brochures violates his rights under Article 8 para. 1
(Art. 8-1) of the Convention.
Article 8 (Art. 8) of the Convention, insofar as relevant, reads:
"1. Everyone has the right to respect for his private (...)
life [and] his home (...)."
The Commission notes that the applicant, despite his request to
the OVS to refrain from sending him advertising material, continues to
receive unsolicited advertising brochures enclosed in the mail he
receives from the OVS, a private limited company responsible for the
distribution and management of student passes for free public
transport.
The Commission notes that the applicant has not been restricted
in the exercise of his right to respect for his private life and home
within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.
Consequently, it cannot find that there has been an "interference" with
the applicant's rights under Article 8 para. 1 (Art. 8-1) of the
Convention.
The Commission has therefore examined the question whether the
facts of the case disclose a lack of respect on the part of the
respondent Government on the basis of a positive obligation.
It recalls that the notion of "respect" enshrined in Article 8
(Art. 8) of the Convention is not clear-cut. This is the case
especially where positive obligations implicit in that concept are
concerned. In determining whether or not such an obligation exists,
regard must be had to the fair balance that has to be struck between
the general interest and the interests of the individual, as well as
to the margin of appreciation afforded to the Contracting States
(cf. No. 23634/94, Dec. 19.5.94, D.R. 77-A p. 133).
In the determination of the question whether or not there is a
positive obligation under Article 8 (Art. 8) of the Convention for
Contracting States to ensure that the wish of persons not to receive
unsolicited advertisement brochures is respected, the Commission has
had regard to the Convention organs' case-law stating that the freedom
of expression within the meaning of Article 10 (Art. 10) of the
Convention, which also applies to information of a commercial nature
(cf. Eur. Court H.R., Casado Coca judgment of 24 February 1994, Series
A no. 285-A, para. 35 with further references), holds a prominent place
in a democratic society (cf. Eur. Court H.R., Oberschlick judgment of
23 May 1991, Series A no. 204,
p. 25, para. 58).
The Commission subscribes to the District Court judge's finding
that commercial utterances in sound, image and writing are normal in
the present day society of the Contracting States and can easily be
ignored.
Noting, on the one hand, the freedom of expression in respect of
information of a commercial nature and the need felt to limit the costs
of student facilities and, on the other hand, the fact that the
commercial information at issue can easily be ignored, the Commission
finds that the sending of unsolicited advertisement brochures does not,
in the circumstances of the present case, amount to a lack of respect
for the applicant's right to respect for his private life and home.
It follows that the application must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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