Attack Journalism in Tros Program Opgelicht?!
Court of Appeal of Amsterdam 22 September 2009
"Cheat and Pathological Liar"
On 13 March 2007 in its program "Opgelicht?!"
(Cheated?!) the Dutch broadcasting corporation Tros paid attention
to "cheat" Nanne de Gooijer. He would have cheated his
in-laws for an amount of almost € 90,000 and hired or ordered cars
and bought real estate without paying or being able to pay for
them. In the course of the program he was called a
"cheat" and a "pathological liar". The in-laws
and other victims told their story in the program and De Gooijer
reacted before the camera. His name was mentioned in the program
and on the website and he was filmed in a recognizable manner.
De Gooijer received a surprise visit from a reporter and a
cameraman of the Tros. He let them into the house and answered
questions. Apparently, he later regretted this, because he sent the
Tros a letter in which he stated that he had not given permission
for the recording and that he invoked his portrait right. The Tros
broadcasted the program anyway, after which De Gooijer initiated
proceedings on the merits. He claimed a declaratory judgment that
the Tros had acted unlawfully towards him, an order that his name
must be removed from websites and an order to pay damages. In a
judgment of 11 June 2008 the Court rejected his claims. De Gooijer
appealed and the Court of Appeal rendered judgment on 22 September
2009.
Relationship to Criminal Law: "Not Proven In
Court"
De Gooijer was criminally convicted for cheating his in-laws in the
first instance and on the appeal. He brought an appeal to the Dutch
Supreme Court against these convictions, in which proceedings no
judgment has been rendered yet. De Gooijer complained to the Court
of Appeal that in addition to the cheating of his in-laws the Tros
also accused him of having committed other offenses, without these
offenses having been proven in court. The complaint was not well
received, because the Court of Appeal correctly pointed out that
"proven in court" is a too far-reaching requirement. The
Court of Appeal considered: "Due care with regard to the
verification of the credibility of the facts must be required of
persons who disclose or distribute accusations against a particular
person. This requirement, however, is not so far-reaching that
these requirements of due care can only be met if the facts may be
considered established facts according to the statutory rules of
evidence".
It is a common misconception that the media should be able to
prove the correctness of accusations or that there even should be
a(n irrevocable) court judgment or a(n irrevocable) conviction.
Fortunately, the requirements are not that high - otherwise
journalism and crime journalism would practically be impossible.
The media only have to be able to prove that they did not
make the accusations rashly.
"Attacked With a Rolling Camera": Reliance on Portrait
Right
The portrait right is regulated in Section 21 of the Dutch
Copyright Act. This section stipulates that the person portrayed
(in a portrait that is made without having been commissioned by
him) may oppose its publication, if a reasonable interest
opposes this publication. As occurred in this case, this reasonable
interest of the person portrayed may lie in the right to privacy
protected in Article 8 of the European Convention on Human Rights.
This interest should subsequently be compared with the interest in
the right to freedom of expression, or, in other words, the right
to freely receive and impart information, as protected in Article
10 of the ECHR.
It has appeared from earlier legal actions that courts are not
always taken with the so-called 'attack journalism'. In
those cases the persons involved successfully protested against the
broadcasting of (recognizable) images made when they were
'attacked' with rolling cameras, but these are isolated
cases and De Gooijer's protest was in vain. It is true that De
Gooijer was confronted by surprise with a reporter and a cameraman
of the Tros, but the Court of Appeal did not deem this to be of
decisive importance. De Gooijer had had previous contact with the
Tros, knew what it was about and had promised to cooperate. In his
own words, he was "not surprised or afraid" and the
recordings show that he told his story in a quiet manner. The Court
of Appeal has also taken into consideration the fine details that
De Gooijer had served the Tros employees coffee and that at his
request he had been allowed to comb his hair. Under these
circumstances, the Court of Appeal is of the opinion that the right
of the Tros guaranteed in Article 10 of the ECHR prevails over De
Gooijer's right to privacy and his portrait right. A case of
attack journalism with judicial approval.