The Rectification of Opinions in Dutch Data Protection Law: A Brief Historical Inquiry

Abstract

On the basis of EU case-law, guidelines and scholarship, it is unclear whether opinions can be rectified under Article 16 GDPR and, if yes, what rectifying opinions means in practice. Yet, such ambiguity cannot be explained on the basis of the text of Article 16 GDPR, which allows the rectification of any type of personal data. This article inquires into the historical origins of the facts versus opinions dichotomy for the purpose of the right to rectification in Dutch data protection legislation. It examines how and why this distinction emerged during the preparation of the first Dutch data protection law as well as how it influenced the interpretation and application of the right over time by Dutch courts and the Dutch DPA. This study can help explain what distinguishes opinions from so-called facts for the purposes of rectification, why such differentiation exists and how it can affect the interpretation and application of the right. The analysis leads to the conclusion that, at the Dutch level, the facts versus opinions dichotomy is a by-product of two fundamental uncertainties. The first one concerns the notion of accuracy and the standard of proof required to prove an inaccuracy. The second one relates, more generally, to the relation between data protection law on the one hand, and other (often national) legal regimes, such as administrative law or tort law, on the other, with which data protection law will often intersect.