In civil law, our firm has specific expertise in cases involving journalism and freedom of expression. Among other things, we handle cases involving unlawful (press) publications in which incorrect or misleading information is disseminated. Our lawyers regularly conduct proceedings (including interlocutory proceedings) for rectification and damages. Furthermore, we assist journalists who are being prosecuted under criminal law, as well as journalists who are (additionally) being sued under civil law. In particular, we specialize in cases that also involve criminal law.
Freedom of speech vs. protection of honor, good name and reputation
When it comes to (allegedly) unlawful statements, the discussion often focuses on a clash of two fundamental rights. On the one hand, the right to express an opinion (freedom of speech). On the other hand, honor, good name and reputation must be protected.
Freedom of speech
Freedom of expression is included, among other things, in Article 10 of the European Convention on Human Rights (ECHR). Freedom of expression is also governed by Article 7 of the Constitution, Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR) and Article 13 of the International Convention on the Rights of the Child (CRC). Freedom refers not only to expressing an opinion, but also to cherishing an opinion and to receiving and processing intelligence and ideas.
Protection of honor, good name and reputation
The protection of honor, good name and reputation are protected, among other things, by Article 8 ECHR (personal integrity and privacy).
Rectification or compensation possible?
In assessing the right to rectification and/or compensation, a balance must be made between the fundamental right of freedom of expression on the one hand and the protection of honor, good name and reputation on the other. A restriction on freedom of expression is possible if it is provided by law and is necessary in a democratic society, for example to protect one's good name and the rights of others. There is a restriction provided by law if the statements are deemed unlawful within the meaning of article 6:162 of the Civil Code (hereinafter: BW).
In answering the question of which right - the right to freedom of expression or the right to protect honor, good name and reputation - prevails in this case, the mutual interests of the parties must be weighed, taking into account all the relevant facts and circumstances of the case. Which of the interests should prevail depends on the circumstances to be considered together. Circumstances that may play a role in assessing the lawfulness or otherwise of a statement / press publication are:
- the nature of the (published) remarks and the seriousness of the likely consequences for the person to whom those remarks relate;
- the seriousness - viewed from the public interest - of the wrongdoing that the statement/publication seeks to expose;
- The extent to which the statements find support in the available factual evidence;
- the creation and framing of the utterances;
- The extent to which the person at whom the statement is directed is a public figure, whereby also of importance is the position this person (held);
- previous behavior of the person concerned; and
- the probability that the information would have received publicity even without the accused publication.
Limitation necessary?
In assessing whether the restriction is necessary, the court may face an impasse: how does the need for an infringement of freedom of expression compare with the need for an infringement of the right to privacy? In principle, these two fundamental rights are on an equal footing; it cannot be said that freedom of expression generally outweighs the protection of privacy. Which circumstances apply and what weight should be given to them depends on the facts and circumstances of the concrete case.
For loss that does not consist of pecuniary damage, the injured party is entitled to damages to be determined on a fair basis if his honor or reputation has been harmed or his person has otherwise been affected (Article 6:106 of the Civil Code). It is not important for the occurrence of this type of damage whether the person concerned has suffered material damage or physical or psychological injury as a result of the wrongful act. Damage to the honor or good name of the person involved is sufficient. The amount of the damage can be estimated (Article 6:97 BW). In some cases it is likely that statements will not be rectified and/or removed. It is then possible to achieve the desired result by means of a so-called penalty payment.
Journalists and freedom of speech
Freedom of speech allows journalists to freely gather, process and disseminate information without undue interference from the government or others. Even for journalists, freedom of expression is not unlimited. Journalists' freedom of expression may be at odds with the right to respect for privacy.
Supreme Court on press freedom
Our highest national court - the Supreme Court - has repeatedly addressed that tension. For example, the Supreme Court considered:
"When there is a clash between the right to freedom of expression on the one hand and the right to respect for privacy on the other, the answer to the question as to which of these two rights prevails in the concrete case must be found by weighing all the relevant circumstances of the case. The position of the press is of particular importance in view of, on the one hand, its task of disseminating information and ideas of public interest and playing its vital role of public watchdog and, on the other hand, the public's right to receive information and ideas. In the aforementioned balancing act, the right to freedom of expression guaranteed by art. 7 Gw and art. 10 ECHR does not take precedence. The same applies to the rights protected by art. 8 ECHR. The assessment must be made in one go whereby the judgment that one of the two rights, considering all relevant circumstances, outweighs the other right, means that the infringement of the other right meets the necessity test of art. 10 (2) ECHR, or art. 8 (2) ECHR." [1]
Consistent with similar cases involving statements made by non-journalists, cases involving journalists are also subject to the Supreme Court's consideration of a number of factors in weighing interests. For example, the Supreme Court listed as circumstances to be considered:
a. the nature of the published suspicions and the seriousness of the likely consequences for the person to whom those suspicions relate;
b. the seriousness - viewed from the public interest - of the abuses which the publication seeks to expose;
c. the extent to which at the time of publication the suspicions were supported by the factual material available at the time;
d. the framing of the suspicions, viewed in relation to the factors listed in a - c above;
e. the degree of probability that, even without the alleged publication through the press, in the public interest the objective sought could have been achieved by other means less harmful to the other party with a reasonable chance of success;
f. a possible limitation of the prejudice to be caused by the press publication to the person affected by it, in connection with the likelihood that the piece in question, even without the accused making it available to the press, would have received publicity.[2]
The European Court of Human Rights on press freedom
The European Court of Human Rights has also considered journalists' freedom of expression in several cases.
In the case Honorifics against Finland[3] involved the author of a magazine article. In this article, the author discussed an ongoing criminal case against a businesswoman suspected of benefit and insurance fraud. A captioned frame showed the businesswoman's name and photos. The author, editor-in-chief and publisher of the magazine were ordered by the national court to pay damages. The ECtHR found a violation of freedom of expression. This lay in the fact that the requirement that the infringement is necessary in a democratic society was not met; the balancing by the (highest) Finnish court of the freedom of expression on the one hand and the privacy interest on the other hand was considered by the ECtHR to be insufficiently motivated.
It is quite conceivable that this could be different in a similar case at the time when a decision of the national court is sufficiently reasoned. It follows that cases such as the present one are highly casuistic in nature.
Journalists on press freedom
In addition to national and international case law, it is also important to look at what the profession itself considers relevant. When looking at the publication of suspects' data, it follows from public sources that the Press Council also makes the necessary assessment. In a Guideline issued by the Press Council in 2007, section 2.4 ("Privacy") reads as follows:
"2.4.6. The journalist shall avoid publishing information in words and pictures that would make it easy to identify and trace suspects and convicts outside the circle of persons with whom they are already known.
The journalist is not bound by this rule when:
- the name is an essential component of reporting;
- failure to disclose the name because of the person's common knowledge serves no purpose;
- failure to mention the name may cause confusion with others who may be foreseeably harmed by it;
- mentioning the name is done in the context of investigative reporting;
- the individual himself seeks publicity."
Politicians and freedom of speech
For politicians, words are tools. Politicians have plenty of room inside and outside parliament to express their opinions.[4] The importance of freedom of speech for politicians lies in the fact that they are elected by the people.[5] A politician must have the ability to represent voters.
Even for politicians, freedom of speech is not absolute. In other words, restrictions can be placed on a politician's freedom of speech. It follows from case law that statements by politicians must be prevented from being needlessly offensive, causing intolerance and not contributing to political debate.[6]
It can be seen from the case law of the European Court of Human Rights (ECtHR) that there are a number of non-exhaustive factors that the ECtHR considers important when assessing a concrete case. The ECtHR distinguishes between statements that pertain to government bodies and statements that pertain to concrete population groups - population groups professing a particular religion or population groups with a particular orientation (minority groups) come to mind. It follows from case law that a politician is allowed more leeway when it comes to an opinion that pertains to government bodies. A politician must be able to criticize the government. When it comes to individuals and population groups, however, boundaries are more likely to be drawn. So in addition to looking at who the statement is about, it is important to look at the context of the statement.[7] In the case of an utterance made, for example, in an article, the specific utterance should be judged in light of the entire article. The same applies to statements made during a speech. It is often possible that a specific utterance may initially appear to be unlawful in nature, but that the unlawfulness is removed by the context. In addition, the scope of the utterance is important. The ECtHR indicates that in certain situations a politician must be aware that the utterance has a wide reach.[8] It can be assumed that statements made during an election period have a wide reach.[9] When evaluating an utterance, the time in which the utterance was made must also be considered.[10] Furthermore, when evaluating statements, a distinction must be made between statements that are factual in nature and those that contain value judgments. The truth of a factual utterance must be proven by facts.[11] A value judgment cannot and need not always be demonstrated by facts. It is also good to assess whether the politician had the opportunity to restate a statement.[12] A politician who has made his utterance in a newspaper article will not easily be able to successfully defend himself by arguing that an utterance was made on a whim. That may be different if the utterance was made during a live televised debate.
Private/public persons and freedom of expression
Discussions and conflicts that involve freedom of speech and the protection of honor, good name and reputation usually think of politicians and journalists. However, it is also common for private individuals to face a conflict that sees the clash of these rights.
This could include public figures who claim that their honor, good name and reputation are affected by a statement in the media. Whether there is a violation of the privacy of a well-known person is again assessed on the basis of the step-by-step plan as set out under 'Freedom of speech vs. protection of honor, good name and reputation'. It follows from national and international case law that in the case of statements/publications concerning well-known persons, great value is also attached to answering the question of whether the statement also contributes to the public debate.[13]
Even persons who are not known to the public face unwelcome comments. This can include disputes that arise between family members and neighbors.
Entrepreneurs/businesses and freedom of speech
Businesses also have the right to express their views and opinions. In addition, they too have the right to have their honor, good name and reputation respected. With the advent of the Internet, more specifically the advent of social media, it has become easier to put companies in a bad light. A few simple sentences in a (fake) review or an online post can change the competitive position. An online post, comment and review may fall under the freedom of speech of the person making the utterance, but this right is not absolute. The right to freedom of expression may be restricted under Article 10(2) ECHR to protect a reputation (business or professional).
In particular, the interest of the person expressing an opinion is that she/he should be able to express critical, informative, opinion-forming and cautionary opinions in public about past experiences. A company's interest lies in particular in not being lightly exposed to suspicion by providing false information. Its professional reputation should not be damaged unnecessarily. When weighing these interests, all the circumstances of the case should be considered. What is important here is that it is permitted to share experiences online. However, it must be a "real" experience. If one has not had an experience, simply because he/she has not been a customer and the review is only posted to damage a reputation, then this expression will be considered unlawful. If the experience has been gained, negative experience may also be shared, but in all cases it is important that to the extent facts or factual qualifications are used in the review, they must also be established objectively and with a sufficient degree of plausibility. Thus, the ability to post a review does not provide a license to disseminate information that has no factual basis.
In addition to online statements, companies may also have to deal with negative statements made in a particular profession. Think of spreading negative and/or factually incorrect information about the competitor. Criminal law can refer to libel and slander (article 261 and article 262 Penal Code). Civil law can assess whether unlawful statements have been made.
A company can claim in court that statements be removed and/or that a rectification be posted. In addition, the court may be asked to impose a ban on making similar statements, to which a penalty may be attached for each time a statement is made again anyway. If the company has suffered damages due to the statements, it is advisable to investigate whether damages can also be claimed.
Interlocutory injunction for unlawful statements?
Civil litigation can sometimes be lengthy. In certain cases, it is not possible to wait for an outcome in a protracted civil action. If there is an urgent interest, so-called summary proceedings can be initiated.
In matters involving allegedly unlawful statements, it is quite conceivable that it is not possible to wait for the outcome in proceedings on the merits. For example, it may be necessary to prevent a publication or broadcast or to put a stop to it in the short term. In the latter case, the removal of (online) messages may be considered.
Civil law combined with criminal law
Civil law and criminal law sometimes go hand in hand. Unwelcome statements/publications can involve both criminal and civil law. A statement may be unlawful under civil law and punishable under criminal law.
In such cases, it is quite conceivable that a lawsuit is pending in the civil court and, in addition, a criminal case in the criminal court. In summary proceedings, a demand can be made that a publication be removed and rectified, with damages also around the corner. In criminal law, retaliation, in the form of a criminal penalty, may be among the issues.
Lawyer ,freedom of press', 'freedom of speech' or 'rectification' needed?
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[1] HR Oct. 5, 2012, ECLI:NL:HR:2012:BW9230, NJ 2012/571, para. 3.2.5.2.
[2] See, inter alia: HR 24 June 1983, ECLI:NL:HR:1983:AD2221, NJ 1984/801 cf. M. Scheltema; HR 6 January 1995, ECLI:NL:HR:1995:ZC1602, NJ 1995/422 cf. E.J. Dommering; HR October 5, 2012, ECLI:NL:HR:2012:BW9230, NJ 2012/571.
[3] ECHR 10 February 2009 (appl.no. 3514/02, Eerikaïnen v. Finland)
[4] ECHR 23 April, 11798/85 (Castells vs. Spain), § 43.
[5] ECHR 23 April, 11798/85 (Castells vs. Spain), § 42.
[6] ECHR 6 July 2006, 59405/00 (Erbakan vs. Turkey), § 55.
[7] See, inter alia: ECHR 6 July 2006, 59405/00 (Erbakan vs. Turkey), § 58; ECHR 1 January 2011, 16853/05 (Faruk Temel vs. Turkey), § 61.
[8] ECHR 16 June 2009, 15615/07 (Féret vs. Belgium), § 76.
[9] ECHR 16 June 2009, 15615/07 (Féret vs. Belgium), § 76.
[10] ECHR 6 July 2006, 59405/00 (Erbakan vs. Turkey), § 58-63.
[11] ECHR 15 March 2011, 2034/07 (Otegi Mondragon vs. Spain), § 53.
[12] ECHR 15 March 2011, 2034/07 (Otegi Mondragon vs. Spain), § 54.
[13] See, inter alia, Amsterdam Court of Appeal June 26, 2008, ECLI:NL:GHAMS:2008:BD5538 and ECHR June 24, 2004, ECLI:NL:XX:2004:AQ6531 (Caroline von Hannover I).
