Privacy and Public Transport: Dutch OV-Chipkaart System Must Be Reviewed

The Dutch Data Protection Authority must research more options for discounted travel with an anonymous public transport chip card.
Dutch Railways (NS) introduced a public transport chip card (OV-chipkaart) system in 2014. From that moment, a special discount subscription for off-peak hours was only possible with a personalized OV-chipkaart, making it impossible to travel with discount anonymously.

Michiel Jonker did not agree with the measure, saying it is discriminatory, as travelers who want to travel anonymously — and do not want to share private information — have to pay more. According to him, the mandatory link between the personalized OV-chipkaart and the discount subscription for off-peak hours is in conflict with the Data Protection Act (Wbp).

Jonker first complained to NS in 2014, but their dispute has not yet been resolved. The Disputes Commission and the Data Protection Authority (DPA) denied Jonker's claims. The DPA saw no reason to start an investigation into NS's practices. Jonker then went to court.

Insufficient research

The central question for the judges of the court in Arnhem was whether there is a violation of the Data Protection Act and a violation of the right to be free from discrimination.

The Data Protection Authority indicated that it conducted an explorative investigation into the subject. In its opinion, the Data Protection Act gives a legal basis for the processing of travelers' data by the NS. The NS enters into a contractual agreement with the traveler, which is not possible without personal data.

Dutch Railways introduced the OV-chipkaart system in 2014. (Image: NiederlandeNet)

In its decision issued last month, the court ruled that the DPA hasn't researched all options sufficiently. It should have investigated other, less invasive possibilities to register travelers' data:

"According to the court, given the fundamental character of the question at hand, there is in any case sufficient reason to open an investigation pursuant the Policy Rules for enforcement of the Data Protection Act."

The court only agreed with Michiel Jonker in relation to the investigation that the Data Protection Authority has to conduct. This does not mean that it is now possible to get a discounted subscription for off-peak hours for an anonymous OV-chipkaart.

Here is the court's judgment (in Dutch).