RVD Extends Media Code: Linking to Private Photographs of Members of Royal Family Is Unlawful
E-mail from the RVD
It appeared that the Dutch Government Information
Service (Rijksvoorlichtingsdienst or "RVD") sent a rather
special e-mail to journalists who report on
the Dutch royal family. In an attempt to extend the Media Code,
journalists are warned that it is prohibited to link to
unauthorized private photographs of members of the royal family.
Below is an extract of the e-mail from the Ministry of General
Affairs (which incorporates the RVD):
As already known, members of the Royal House, just like any
other family, have the right to feel free and remain unnoticed in
private circumstances. There is only a legal justification to
infringe their personal privacy by publishing private photographs
when the publication of the photographs contributes to a public
debate of general interest.
Posting a link to a private photograph of a member of the Royal
House is equal to the publication of that photograph to the extent
that when the photograph concerned is not a contribution to a
public debate of general interest the posting of the links is also
an unlawful act.
It appears from case law, inter alia, that an underlying
document that can be retrieved by one act (namely clicking/double
clicking on the link) is deemed to be connected to the link in such
a manner that by posting the link the document has become, in a
way, a part of the document in which the link is posted. This way,
by posting the link the underlying document is also
distributed. …
Contents of E-Mail Incorrect; Linking Is Only Unlawful in
Exceptional Cases
Apparently, the RVD wanted to create some clarity, but
the point is that this is not in line with case law, as the RVD
wants the journalists to believe. The e-mail of the RVD seems to
quote from a criminal case from 2007 (in Dutch). This case
concerned links to fundamentalist Islamic texts in which violent
actions were incited against the public authorities. According to
the court, this was criminal incitement. It seems that the RVD
wrongly distils a general rule from this criminal case that linking
to a document is equal to publishing that document. This judgment
does not have this general purport. This is a criminal case in
which the exact description of the crime and the circumstances are
decisive. This case did not at all concern the civil-law question
of whether linking to unlawful content itself is also unlawful.
Incidentally, in exceptional cases, linking to unlawful content
may be unlawful. The example that is usually relied on is a
judgment from 2002 in which the court ruled that a number of links
on the Indymedia website were unlawful. The links led to articles
in which it was described how the railroad traffic of Deutsche Bahn
can be sabotaged. In the article it was described, amongst other
things, how a hook claw can be made with which the electric
catenaries of the railroad network can be destroyed. In an earlier
court action the articles had already been declared unlawful.
The Indymedia case was an exceptional case. First of all, this
concerned a kind of terrorism handbook, which, according to the
court, could present a danger to persons and goods. Secondly, the
court had declared the texts to be unlawful already before.
Thirdly, the link was not included in a journalistic production,
but in reactions on the Indymedia forum. These were the
circumstances which had the court declare that the links to the
article were unlawful. Therefore, this judgment is the exception to
the rule.
Copyright-law case law also contradicts the claim of the RVD.
According to this case law, the “regular” (not embedded) linking to
content is not a disclosure of this content.
Words of Warning
The argument of the RVD that the publication of a
private photograph of a royal highness is automatically unlawful if
it does not contribute to a public debate of general interest,
leaves much room for negotiation. But the claim that linking to a
private photograph of one of the members of the House of Orange is
unlawful, is even more remarkable. Nevertheless, the RVD concludes
with the following words of warning:
“I advise you to take the above into account in the future
and when posting a link to private photographs of members of the
Royal House that are located elsewhere on the Internet, just like
when publishing such photographs, to first consider whether a
contribution is made to a public debate of general
interest.”
It is now common knowledge that the RVD takes measures against
any media that do not obey its rules. For instance, such media will
not be allowed to attend official photo moments with the Royal
Family anymore. And that is were the shoe pinches. The Royal Family
has, of course, the right to privacy. And it is also completely
understandable that, for instance, Willem Alexander and Maxima keep
a sharp eye on their children leading a normal life as far as
possible, without too much media attention. But it is remarkable
that the Queen, as a member of the government, and the RVD, which
falls under the Ministry of General Affairs, make their own rules.
Rules that are stricter than the rules applying to their own
citizens. If the media do not stick to the rules created by the
RVD, their free access to information will be restricted as a
“punishment”.
The question is whether the RVD is doing the Royal Family a
favor with this kind of mails.
Here you can find my comments (in Dutch) in
the RTL Boulevard television program.