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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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IJSPEERD v. THE NETHERLANDS

IJSPEERD v. THE NETHERLANDS

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