Court of Amsterdam: Parool Was Allowed to Depict Suspect Rex Van P. Recognizably
Rex Van P. had a problematic childhood and was in trouble with
the law several times. In 2009, the support agency Spirit for
homeless youngsters in Amsterdam took care of him. On 15 June 2009
Van P. had a meeting with his counselor and her superior, where his
aggressive behavior was discussed. Van P. was told that he would
have to follow anti-aggression training and would have to spend the
weekends outside from then on. Van P. then flew into a rage. After
he had calmed down, he was allowed to call his mentor, in the
presence of three female social workers of Spirit. Having hung up
the phone, he suddenly drew a knife and stabbed the three women
several times. One of them did not survive the attack, and the two
others were badly injured.
Van P. escaped, but was caught that very evening. After his
arrest he confessed. On 21 June 2010 he was sentenced to 16 years’
imprisonment. Meanwhile, the Public Prosecution Service has lodged
an appeal, because it considers this sentence too low and because
it did not include a hospital order.
Suspect Portrayed
in Documentary
The daily newspaper Het Parool reported in detail about this
tragedy in Amsterdam. During their research the editors discovered
a series of documentaries called ‘Vrije Radicalen’ (Free Radicals)
of the NPS from 2007. In the series, youngsters who turn against
society, often with criminal backgrounds, were followed by a camera
crew. One of the episodes was about Van P. The documentary showed
him in a recognizable manner. In the series Van P. talked about his
criminal record and his admiration for the Crips gang. The episode
with Van P. in it was aired by NPS in 2007 and 2008, and was still
on ‘On Demand’ when Het Parool discovered it.
In the issue of 19 September 2009, Het Parool devoted an
article (in Dutch) to the fact that the
suspect of the stabbing had been portrayed in detail in the NPS
documentary. The article was illustrated by a still from the
documentary with a recognizable picture of Van P.
Legal Action
More than three months later, Van P contacted the newspaper saying
that Het Parool had violated his portrait right by publishing his
portrait. Van P demanded the removal of the portrait and claimed
compensation. Het Parool removed the portrait from its website, but
refused to pay compensation. In proceedings on the merits, Van P
then claimed a declaratory judgment stating that Het Parool had
acted unlawfully, compensation amounting to €10,000, and a court
order for Het Parool to ensure that the photograph could not be
found anywhere on the Internet anymore. In its
judgment (in Dutch) of 29 December 2010, the
Court of Amsterdam denied all claims of Van P and ordered Van P
to pay the costs of the proceedings.
When Can Suspects and Convicts Be Depicted Recognizably?
An important argument used by Van P. was that
suspects and convicts can only be depicted recognizably in very
exceptional cases of crimes that have sent a shockwave through
society. Examples are persons like Mohammed B., Volkert van der G.
and Ferdi E (some of the most notorious Dutch convicts). The last
mentioned person, who murdered Gerrit-Jan Heijn (brother of
supermarket moghul Albert Heijn), had also brought a case against
the media that had depicted him recognizably. This case went all
the way to the Supreme Court and resulted in the standard portrait
right Ferdi E. judgment.
In the Rex Van P. judgment, the Court made clear that
the Ferdi E. judgment did not set a rule carved in stone
that suspects or convicts may only be depicted recognizably if they
have committed crimes that gripped the country for weeks, or even
months or years. It should be judged in each individual case
whether the right to privacy prevails over the media's freedom
of speech, and this will always depend on the circumstances of the
case. Here, those circumstances spoke against Van P., who had
personally cooperated in the NPS documentary.
Moreover, the Court held that the still used in Het Parool
showed a direct and functional connection to the contents of the
article, because the photograph showed the scar he sustained from a
mass fight he tells about in the series. Besides, when the picture
was published in Het Parool, the documentary was still available
online.
All this means that the interest of Van P. in people not being
able to recognize him in detention as the perpetrator in the Spirit
tragedy from the photograph published in Het Parool carries less
weight than the interest of Het Parool in the publication. This is
not altered by the fact that the Spirit tragedy had not occurred
yet when Van P. cooperated in the documentary.
This judgment confirms that it is very difficult for the media
to draft rules on when it is allowed to depict a suspect or a
convict recognizably. This will always depend on the circumstances
of the case. Suspects and convicts are not outlaws. However, their
privacy may have to give way because of the seriousness of the
crime, simply because the public has a right to know who is behind
that crime. Read more about this in
this article by Gerard Schuijt (in Dutch).
The Van P. judgment illustrates that under circumstances,
privacy must also give way if the suspect has expressly and
voluntarily sought publicity himself in the past, especially if
that publicity is connected to the crime of which he would be
suspected later.
Het Parool was represented by
Jens van den Brink of Kennedy Van der
Laan.