The website zwartelijstartsen.com, which contains names and photos of doctors and healthcare providers who allegedly committed a ‘medical crime’, is unlawful. This was ruled by the District Court of Midden-Nederland in summary proceedings filed by the Stop Online Shaming (SOS) Foundation.
SOS represents the interests of victims of online privacy infringements and online unlawful manifestations. At the end of last year, the foundation filed summary proceedings against Stichting Slachtoffers Iatrogene Nalatigheid Nederland (SIN.nl). This was based on the online ‘black list’, which has been offered by SIN.nl since 2010.
‘Mom, in class they say you’re a bad doctor’
On zwartelijstartsen.com about 900 doctors, dentists, nurses and psychologists were named and dismissed (often with photos) as perpetrators of ‘medical crimes’. SOS considered this ‘digital pillorying’ to be unlawful and also in violation of the GDPR. For example, most of the doctors and healthcare providers on the blacklist did not have a record in the BIG register. They were therefore allowed to practice their profession as usual, and patients should be able to turn to them safely.
The list included not only suspended doctors, but also doctors – such as RIVM chief Jaap van Dissel – who had only been a member of a medical disciplinary tribunal that had rejected a patient’s complaint. On the website, everyone got the ‘blacklist stamp’. Finally, a request for removal from the list was made virtually impossible by SIN.nl.
The fact that the list also contained a number of entries of doctors and healthcare providers who did indeed have an record in the BIG register does not detract from this. Even then, the question remains whether presenting this information in this way outweighs the enormous impact on the interests of the individual doctors and healthcare providers. After all, it was not clear to the public that this was a privately maintained list and therefore not an official blacklist.
Balance of interests
According to the Court in summary proceedings, this case concerns a clash between two fundamental rights. On the one hand there is the right to honour and reputation of the individual healthcare providers that Stichting SOS represents. On the other hand, SIN’s right to freedom of speech. Which right ultimately weighs more depends on whose interest is more important in the given circumstances: the interest of individual citizens not being exposed to light-hearted suspicions through publications, or the interest that – due to a lack of public awareness – abuses that affect society are not allowed to continue.
In this specific case, the weighing of interests was in favour of SOS. The fact that, according to SIN, the website was not intended as a pillory, but to inform and protect patients and to call failing healthcare providers to account did not alter this.
Black list unlawful
The Court therefore ruled that the website is unlawful. Particularly in view of the fact that it concerns very serious statements, which often lack a factual basis. Although perhaps not every expression on the website can be considered unlawful, in the opinion of the Court in preliminary relief proceedings this fact does not outweigh the total image of the website, which seems to take away all nuance. The use of ‘blacklist’ alone constitutes a serious accusation, certainly in combination with qualifications such as ‘medical crimes’ or ‘failing doctors’.
The Court in summery proceedings prohibited SIN.nl from making statements in connection with ‘blacklisting’, ‘failing doctors/healthcare providers’, ‘medical crime’, or otherwise being defamatory, libelous or abusive towards individual doctors and healtcare providers. In addition, SIN.nl must request Google to remove all references to the blacklist from its search results. Finally, the website must be taken offline within two working days and the domain names must be handed over to the SOS Foundation.
SIN.nl seems to have partly complied with this. For example, although zwartelijstartsen.com and zwartelijstartsen.nl have been removed, there is still a URL on the SIN website that refers to the Wayback Machine. This is an independent website that allows users to go ‘back in time’, to see what websites looked like in the past. SIN.nl chairman Sophie Hankes, who was criminally convicted twice in 2017 and 2019, thus appears to be making another attempt to get out from under the sentence.