If you live in the Netherlands, you've probably already seen the advertising panels and billboards hanging at bus stops along the road. A large poster displaying 'Game Over?!' alongside several blurred photos showing unrecognisable individuals. This was the new large-scale campaign by the Dutch National Police to track down fake officers and fraudsters. The concept behind it was fairly simple. Photos of 100 individuals suspected of committing fraud were posted online in unrecognisable form. The suspects were given two weeks to report to the police. If they failed to do so, the images would be replaced with recognisable photos of the suspects. Although sharing this data is a very serious measure, it does not necessarily conflict with legislation. Why can the police do this and on what grounds? This blog will therefore address the central question: what is police investigation communications and when may the police deploy this measure?
Wanted
Making photos or videos of suspects public is a serious measure that can be deployed by the police. This investigative tool is not new. For years, the police have chosen to engage the public in identifying suspects. The well-known programme Opsporing Verzocht (roughly translated as "Investigation Requested") is an example of this. In these cases, the police choose to publicly share police data (i.e., personal data collected in the execution of police duties) with the broader public to request assistance in obtaining information about a committed criminal offence. The request for help can be put to the public in various ways. This can be through television programmes, but also through appeals on billboards and social media. With the Game Over?! campaign, the police decided to deploy all these means simultaneously.
Legal Basis
The police may choose to deploy this investigative tool for truth-finding purposes. The authority for this can be found in the Police Act (politiewet), the Special Investigation Services Act (Wet op de bijzondere opsporingsdiensten), and the Code of Criminal Procedure (Wetboek van Strafvordering). However, these legal bases are not sufficient on their own. Earlier in this blog, it was briefly noted that sharing images depicting a suspect is classified as sharing police data. This means that not the GDPR but the Police Data Act (Wet politiegegevens, 'Wpg') and the Judicial and Criminal Records Act (Wet justitiële en strafvorderlijke gegevens) apply. Under the Wpg (particularly Articles 3, 8, and 19 Wpg), police data may be processed and, under certain conditions, provided to third parties, insofar as this is necessary for the execution of police duties, including the investigation of criminal offences. Sharing the data with individuals or institutions aligns with the purpose of truth-finding. Nevertheless, the police must exercise care when deploying this investigative tool. Sharing the images constitutes an infringement of the suspect's personal privacy. Additionally, published images end up in the permanent digital memory of the internet. The damage that could arise when an innocent individual is published can be difficult to undo. The police may therefore only share this data on the condition that a careful balancing of interests has been conducted by the public prosecutor, taking into account the requirements of lawfulness, proportionality, subsidiarity, and effectiveness. Policy frameworks consider, among other things, the seriousness of the criminal offence, for example whether it concerns a crime with a sentence of 8 years or more. However, this does not constitute a strict legal threshold, but rather a further elaboration of the proportionality test. Based on this assessment, the public prosecutor may grant permission for the release of images of the suspect. Without this permission, the images will not be made public. All this means that once the suspect has been identified, the necessity for data sharing ceases and the images must be removed from the public domain.
Game Over?!
When looking at the campaign's webpage, you can see this regulation in action. The suspects shown were initially blurred. In this way, the police applied a less intrusive measure than publishing unblurred images. This approach fitted within the requirement of subsidiarity. The suspect effectively received a warning: "Suspect, take note. You have the chance to report to the police yourself, otherwise we will publish images of you." Only when the suspect did not come forward within two weeks did the police proceed to show unblurred photos. The police thus worked in phases. First, an attempt was made to achieve the goal with a less far-reaching infringement of the suspect's privacy. When that had no effect, the more serious measure was deployed, and the images were posted unblurred on the internet.
Additionally, the campaign must be proportionate. This means the ends must justify the means. According to the police, this is also the case here. The victims of the crimes are in most cases elderly people. They often become suspicious as a result of these crimes, no longer dare to open the front door, and become distrustful of police officers. Precisely to protect this group and limit the societal harm caused, the police chose to apply a serious measure such as public investigation communications. The police themselves state that in all 100 cases, an individual balancing of interests was conducted by the public prosecutor before the images were posted.
There is also criticism on the campaign. By publicly showing a suspect, the police are essentially taking the place of the judge. Public perception will quickly be that the suspects are also immediately the perpetrators of the committed crime. This conflicts with the presumption of innocence under Article 6 of the European Convention on Human Rights. After all, a suspect is considered innocent until guilt is established by a court.
Effect
At the time of writing this blog, the police have put their words into action and published the photos of the suspects. Of the 100 suspects, 27 individuals were identified within two weeks. In the week after the images were published, another 31 suspects were identified, meaning it is now game over for 58 suspects. The individuals who have been identified have been removed from the website. In national media coverage, the police indicate that the campaign has been very effective. According to them, some detectives have had to work overtime in recent weeks because tipsters are massively contributing.
Conclusion
The Game Over?! campaign demonstrates that investigation communications is a very effective but intrusive measure that can only be deployed within strict legal frameworks. The phased approach emphasises that the police are trying to act in line with proportionality and subsidiarity, but at the same time makes visible how quickly investigation can transition into public condemnation.
Therein lies the core of the issue: not whether this measure works, but when its use is still justified. Effectiveness can never be the deciding factor. The deployment of investigation communications is only defensible when it can be convincingly demonstrated in the specific case that publication of images is necessary and that less intrusive alternatives are insufficient.
After reading this blog, do you have any questions? If so, please contact us!
