Kassa Must Rectify Broadcasts about Pretium
Court of The Hague in Preliminary Relief Proceedings, 29
June 2009
Pretium is a telecom company. Consumers are called by a
telemarketing company on behalf of Pretium, and upon agreement by
telephone they become a customer of Pretium. Afterwards, quite a
lot of customers complain about Pretium, and television programs
such as Tros Radar and Vara's Kassa regularly bring critical
reports about this.
But the question is whether the complaints about the conclusion
of agreements with Pretium by telephone are correct. This can only
be assessed by playing back the telephone conversation, the
recording of which is compulsory. It can then be determined whether
the consumer was misled and has therefore complained correctly, or
whether the consumer consciously agreed by telephone to the offer
of Pretium, but later on, for whatever reason, wishes to reconsider
this decision.
Kassa gave ample attention to Pretium in a number of TV
broadcasts. In a broadcast in 2007 the Consumer Authority and the
Ombudsman, who allegedly received more than 1,000 complaints, spoke
about the matter, and reference was made to KPN, which allegedly
received 2,500 complaints. In 2007 Pretium immediately started
legal proceedings and won the proceedings against the Consumer
Authority, the Ombudsman and KPN, because these parties had acted
negligently because no violation of the rules had been established.
Before, Pretium also successfully brought an action against Kassa.
Meanwhile, at the end of 2008, the Consumer Authority imposed a
penalty on Pretium because in 41 telephone conversations of the
1,000 complaints that were investigated, Pretium had provided
insufficient clear information to the consumer. Pretium has lodged
an objection against this decision. These proceedings are still
pending. Against this background Kassa made four broadcasts about
Pretium at the start of 2009. In these broadcasts Kassa referred to
large numbers of complaints, without explaining in this respect
that the merits of these complaints were not established. It is
true that Kassa has contacted 300 of the 1,200 complainants, but
Kassa actually only has recordings of two telephone conversations
in its possession. These two recorded telephone conversations are
clearly in conflict with the rules, as Pretium has acknowledged.
Pretium took measures against the call center employees and stated
that this concerned two incidents from which it may not be
concluded that all other complaints are valid too. Kassa handed
over 'a few kilos of complaints' to the State Secretary,
but did not provide Pretium with a copy of these complaints. In
Kassa's broadcast Pretium was given a brief opportunity to
react to the accusations.
As a result of these broadcasts Pretium initiated preliminary
relief proceedings against the Vara. Pretium won the proceedings on
most points. Kassa has to remove the broadcasts from its website,
and has to broadcast a rectification and place it on its website,
with the following text:
RECTIFICATION REGARDING PRETIUM TELECOM
During broadcasts of Kassa of 14 February and 4 April 2009 the
Vara has repeatedly made negative and accusatory statements about
the sales methods of Pretium Telecom. The Vara has discredited
Pretium Telecom without having performed an objective investigation
and without there being sufficient underlying facts. In a judgment
of 29 June 2009 the Court of The Hague in preliminary relief
proceedings ruled that the Vara thus acted negligently and
therefore unlawfully towards Pretium Telecom. The Court in
preliminary relief proceedings has therefore ordered the Vara to
broadcast this rectification and to place it on the Kassa
website.
This rectification must remain on the website for four weeks.
The most important consideration of the Court is that Kassa has
repeatedly referred to large numbers of complaints, without
explaining that the merits of the complaints have not been
established yet. In the telecom market telemarketing is an accepted
way of attracting new subscribers, provided that certain conditions
are met. Kassa should have given Pretium more opportunity to defend
itself. A 20-second reaction in a 20-minute broadcast does no
justice to hearing Pretium's side of the argument, which
Pretium has a right to.
Not all Pretium's claims are awarded. The claimed
prohibition that in future the Vara will refrain from statements
that Pretium is guilty of attracting subscribers in an improper
manner without a valid reason and own investigation is denied. The
Court is of the view that this is formulated too generally: it
would lead to a too large restriction of the freedom of expression.
The Court also rejected the claim that Kassa should comply with the
journalistic standards with respect to providing the opportunity to
hear the other side of the argument (as set out in the Journalistic
Guidelines). The Court furthermore respects the fact that Kassa
does not wish to disclose its sources. In addition, the Vara does
not have to place ads containing the rectification in national
newspapers. The rectification must be made public in the same
manner as the original publication, namely via television and the
Internet.
Vara has announced that it will lodge an appeal. To be
continued!
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Update Jens van den Brink:
Since the VARA ruling Pretium lost proceedings against regulator
OPTA [in Dutch] and broadcaster
TROS [in Dutch].