Listener's Contribution not Attributed to the Wereldomroep
A discussion of the judgment Edgard Vermaas Transport vs de
Wereldomroep of the Court of Amsterdam of 9 September 2009
In July 2008, a listener's text message was read aloud in a
radio program of the Wereldomroep: "And yesterday night
was very entertaining with Jonny Walker and the six drivers of
Edgard Vermaas, who have become redundant due to a personnel
cutback. Welcome at Van Doesburg." The presenter of the radio
program added to this: "That is collegiality says Don Frerik.
As we already said before, of course we need collegiality on the
road. Because it is already…yes that is hard to find. That is quite
something, one business ceases to exist, the other business is
taking over staff, I think that is awfully nice." After
the end of the program the Wereldomroep received an e-mail of
another listener, who reported that the information in the text
message was incorrect: Vermaas had not ceased to exist and had not
fired six drivers. The next day, the presenter rectified the
message on the radio.
Vermaas brought proceedings on the merits and claimed a
declaratory judgment that the Wereldomroep is liable for the
damage, and an advance payment to damages of EUR 25,000. According
to the Court the starting point is that de Wereldomroep,
pursuant to Article 10 of the ECHR, may disclose listeners'
expressions through the radio. The mere claiming of damages in a
case concerning expressions also constitutes a restriction of this
freedom of expression.
The Court points out the radio program's nature. Listeners -
mostly truck drivers - pass on information to each other in order
to further their collegiality. This is often done via text messages
or e-mail. According to the Court, however, this does not mean that
the Wereldomroep itself is not responsible. If the contents of a
message provide grounds for doing so, for instance if there are
good grounds to doubt the correctness of the message, or if the
message contains accusatory or hurting expressions, it may be
expected in the scope of careful reporting that the editorial staff
conducts some kind of investigation into the facts or asks the
third parties mentioned in the message for a reaction. According to
the Court, in this case there cannot be any doubt amongst the
listeners about the origin of the message. It is clear that the
information originated from a listener. The presenter also did not
pretend that this information came from him. In the opinion of the
Court the message did not contain any accusations and is not
hurtful with regard to Vermaas, so that no further investigation
was necessary. Furthermore, the emphasis was not on the business
economic situation of Vermaas, but on the entertaining night of the
drivers. Moreover, the Wereldomroep rectified the message during
the next broadcast. The claims of Vermaas were rejected.
This case was handled on behalf of the Wereldomroep by Kennedy
Van der Laan's
Jens van den Brink.