Barbarians At the Gate
A discussion of the judgment of the Court of Utrecht dated 3
September 2008
The Facts
In the summer of 2007 an article was published in the weekly
magazine HP/De Tijd entitled 'Rijkmans
Kasteel', (Rijkman's Castle), an article about country
houses in the Vecht region and the dominant culture in that region.
Where the house of 'newcomer' and also former ABN Amro top
executive Rijkman Groenink seems to be acceptable according to the
Loenen community, in passing the article lashes out at another
family and their country house. Statements such as 'but
barbarians cannot always be kept outside the gate' and 'the
house provokes aggression' are made about these country-house
residents and their house, which has an eye-catching bright green
brass roof and has been a victim of graffiti criminality before. To
what extent, however, are such statements lawful?
Country home of the claimant
The Dispute
The home owner is of the view that his honor and reputation have
been affected by the article. He instituted legal proceedings
against publisher Audax et al. and against a country-house resident
who is quoted in the article. The home owner claimed damages and a
declaration from the Court that the publication concerned, in
particular the qualification 'barbarians' and the statement
that the house provokes aggression, are unlawful towards him and
his family. Audax et al. put forward the defense that the article
was clearly meant to be ironic. The home owner, however, was of the
view that there is no question of irony since the article is mainly
about Rijkman Groenink, who was under great pressure at the time of
publication in connection with the take-over of ABN Amro. Audax et
al. furthermore took the position that the honor and reputation of
the home owner are not affected, in view of the fact that the
article does not concern his family but his house. The neighbor
that was quoted put forward the defense that he has given a value
judgment about the house, which value judgment does not need to be
substantiated by facts.
The Adjudication
For the claims of the home owner to succeed, it
must first and foremost be established that his honor and
reputation have been affected. Furthermore, this affecting must be
unlawful. According to the Court, a weighing of interests between
the right to protection of individual privacy on the one hand, and
the right to freedom of speech on the other hand is necessary in
order to make this establishment.
The Court agrees with Audax et al. that the qualification
'barbarians' must be regarded in the light of the ironic
nature of the article. Moreover, the home owner has stated
insufficient facts indicating that his honor and reputation have
been affected. When adding all this up, the Court reached the
judgment that the honor and reputation of the home owner have not
been affected by the mere use of the term 'barbarians'. The
Court deemed the statement that the house provokes aggression not
to be incorrect, since it is an established fact that the home
concerned had already been daubed in the past. According to the
Court, it is not relevant whether or not the house was already the
subject of discussions at the time of the dispute. In both cases
the statement is not unlawful. After all, according to the Court
this concerns a value judgment that does not have to be supported
by recent facts. Subsequently, the Court rejected all claims.
Conclusion
In this case freedom of speech prevails over the
right to protection of individual privacy. Irony plays a principal
part in this respect, because although a statement such as 'the
house provokes aggression' is a value judgment which a court
will not rapidly regard as unlawful, the question is whether the
same is true for the qualification 'barbarians'. If the
article concerned would have had more serious undertones and if the
home owner could have proven that as a result of this article his
honor and reputation had been affected, the Court could have
arrived at a completely different opinion with respect to this
issue. In this case the freedom of speech wins, and, ironically,
this country home owner living at the Vecht river is allowed to be
labeled as a barbarian.
Country home of Rijkman Groenink