The 2012 edition of the two main international rankings for lawyers have been released, Legal 500 and Chambers. Here are the comments about the media team of Kennedy Van der Laan.

Legal 500 in the category ‘media and entertainment’ on Kennedy Van der Laan: 
‘A very accessible firm, which is informal but has very experienced lawyers’, Kennedy Van der Laan is noted for its freedom of press work. Jens van den Brink is ‘an outstanding lawyer in the field of media law and defamation; very experienced and up to date’. Machteld Robichon-Lindenkamp provides ‘know-how in media cases and special knowledge  of broadcasting matters’. Robinchon acted for TV Oranje regarding alleged regulatory breaches by broadcaster TROS, and the team successfully represented artist Nadia Plesner in proceedings brought by Louis Vuitton.

In the category ‘intellectual property’ Legal 500 writes:
Kennedy Van der Laan gives ‘practical, business-friendly and innovative advice’ to media and consumer goods clients. It advises on general IP issues and has a strong focus on trade marks, particularly in the technology, fashion and internet fields.

In Chambers:
This firm’s technology team is one of the most highly regarded in the Netherlands. It remains at the forefront of developments, often working on cutting-edge projects. The lawyers advised the Dutch national railway on a virtual network for matching international train information, and also handled IT contracts and software licensing agreements. On the media side, it attracts work in both the print and online sectors, most notably representing news blog GeenStijl and newspaper Spits in litigation. It further handled contentious work for De Persgroep newspapers. Its strength in the fields of free speech and defamation has resulted in some interesting work, such as a case over broadcaster VARA’s right to use satire. The team upholds its reputation for telecoms work, with clients including a major mobile operator and various fixed telecoms providers.

On intellectual property Chambers mentions:
This team attracts clients from the fashion, media and technology sectors. It wins warm praise for its pragmatic advice and approachable lawyers.

Sources say: “A strong, broad practice with reputable partners.”, “Founding fathers of the IT scene.” & ”Their strength lies in their ability to gather know-how and then explain it to a judge in a way he or she can absorb it.”

KEY INDIVIDUALS: Jens van den Brink earns much praise for his work on defamation and privacy matters. Clients pick out his up-to-date knowledge of new and social media as a particular strength. Hester De Vries remains one of the market’s most highly respected specialists for data protection and privacy work. Managing partner Joost Linnemann is well regarded for his work in IT, and specialises in e-commerce and complex technology projects and transactions. Patrick Wit works on the intersection between IT, media and telecoms. A source comments: “He does a great job for his clients.” Senior associate Reindert van der Zaal impressed sources with his media work, which often has an IP flavour. Clients note his calm demeanour and strong performance in court.

The Axel Springer case is about the publication of two articles about a well-known German television actor in the daily newspaper Bild, of which the Axel Springer group is the publisher. The first article alleged that the actor – who thanks his fame mostly to his role as a policeman – had been arrested for possession and use of cocaine during the annual Munich beer festival (Oktoberfest). The actor went to the German court to oppose this publication, and succeeded, because Bild was forbidden to publish the statements any further. Almost a year later, a new article appeared in Bild about the matter, because the actor had been imposed a fine of €18,000 after having confessed to the use and possession of cocaine. This publication too was prohibited by the German court.

The opinion of the German judges on both articles is that the actor’s right to privacy outweighs Bild’s right to freedom of expression. The publications were not considered to contribute to a debate of general interest, and even if they would do so, this fact would not outweigh the actor’s right to privacy.

The ECtHR is of a completely different opinion. It considered the arrest and conviction of the actor to be public judicial facts that present a degree of general interest. After all, the public wants to be informed about criminal proceedings. The next question is whether this means that it is also justified to mention the actor by name. In the answer to this question, the ECtHR first observed that the actor played the main role in a very popular television series. It is interesting that the ECtHR also considered it significant that the actor played the role of a policeman in the television series, and was therefore charged ‘himself’ with the investigation of criminal offenses. According to the ECtHR, this fact contributes to the interest of the public to be informed of the actor’s criminal offenses. This is indeed understandable if you think about it, since it stirs up the interest of the public even more. The fact that the man was arrested in a tent during the Oktoberfest was also an important piece of news, according to the ECtHR. Finally, it was considered relevant that the actor himself regularly revealed details about his private life in interviews and his expectation that his private life would be effectively protected was henceforth reduced.

All things considered, the ECtHR ruled – in my opinion correctly – that the violation of the right to freedom of expression of Bild (Axel Springer) is not permitted. This means that the actor lost his case after all. Along with the Caroline II judgment, this is another fine victory for the freedom of speech. The Dutch (entertainment) press will also feel encouraged by this judgment when it reports from the private lives of celebrities.

Incidentally, this case is somewhat reminiscent of the Naomi Campbell case. This was about an article in The Daily Mirror about Naomi Campbell’s addiction to drugs. The photographs with the article were taken surreptitiously when Campbell left a Narcotics Anonymous meeting. However, The Daily Mirror was eventually ruled against for having infringed Campbell’s privacy. For a discussion of this case, see here (in Dutch).

Princess Caroline’s Legal Battle

The battle that Princess Caroline of Monaco fought more than ten years ago against paparazzi who were hounding her, has led to the most important image right case in Europe. Caroline pressed charges against Germany because in her opinion it did too little to protect her privacy. Nondescript photos constantly appeared in German magazines in which she was depicted on private occasions (but in public), with titles such as “Caroline …. a woman returning to life” and “Out and about with Princess Caroline in Paris“. According to the Princess, from the moment she left her house she was “constantly hounded by paparazzi who followed her every daily movement, be it crossing the road, fetching her children from school, doing her shopping, out walking, engaging in sport or going on holiday.” She complained that German law offered too little protection because she could only take action against photos that were taken in secluded spaces, and therefore not against photos that were taken in public places.

In the well-known Caroline judgment (I) of 24 June 2004 the ECtHR made a distinction between reports contributing to a general or political debate that receive a lot of attention from the public, and reports about details of the private life of an individual who does not exercise official functions. Subsequently, this distinction was also used to fight any and all publication of a photo of Dutch celebrities that did not serve the general interest. For instance, news agency Associated Press was reprimanded (MR 3051) for distributing fairly innocent pictures of Maxima and Willem-Alexander and their family, made during a skiing vacation in Argentina. The reason: the publication was not in the public interest.

What seems to be forgotten sometimes is that in the Princes Caroline I judgment the ECtHR took the special situation of the Princess of Monaco into consideration. Caroline was being continually harassed. This climate of “continual harassment” led to a very strong intrusion of her private life and even to a kind of persecution, as the ECtHR considered. As an example a photo is mentioned that was taken at a distance of several hundred meters of Caroline  tripping over an obstacle when entering the Monte Carlo Beach Club. Caroline’s attorney referred in his plea to Lady Di who had died six years before. Would Caroline have to suffer the same fate? These circumstances have contributed to the court order against Germany. The question is whether the distinction made by the ECtHR can be applied in every case just like that. This distinction especially seems to relate to cases in which celebrities are constantly hounded by the long-focus lenses of paparazzi, and not to more innocent photos.

Facts in the Caroline II Judgment

Princess Caroline, this time together with her husband Prince Ernst August von Hannover, once again took a case to the ECtHR. In this new case the Monegasque royal family once again litigated against the German government, this time as a result of the publication of photos in the German magazines Frau im Spiegel and Frau Aktuell of a skiing trip (doesn’t that sound familiar!) in St. Moritz. The princely couple successfully contested two holiday pictures before the German court. But the German court rejected the claim against another photo of the couple on a walk. This photo served as an illustration to an article about the ill health of Prince Rainier. The article in Frau Aktuell read “That is genuine love. Princess Stéphanie. She is the only one who looks after the sick prince“, and mentioned, inter alia: ”… where her father is concerned Princess Stéphanie knows where her heart lies. While the rest of the family are travelling around the world, she has run to be at the side of Prince Rainier (78), who appears to be seriously ailing. She is the only one who takes care of the sick monarch. Stéphanie’s sister, Caroline (45), has taken a few days’ holiday with her husband Ernst August (48) and their daughter Alexandra (2) at the fashionable St. Moritz ski resort in Switzerland.”

The German court ruled that the ill health of the reigning prince is a subject of general interest. The press could report on the manner in which his children combined their family obligations with their private wishes, such as the wish to go on holiday. This case even ended up in the German Constitutional Court, which in its judgment (English translation) made, inter alia, the following rulings, which quite put the Princess Caroline I judgment into perspective:

‘Even entertaining contributions concerning prominent persons, for instance, are covered by the protection of freedom of the press. [...] Prominent persons can also offer orientation in shaping one’s own lifestyle, as well as fulfilling the function of role model or showing what one does not wish to imitate [...] The circle of legitimate general public interest would be prescribed too narrowly if one were to restrict this to behaviour that is scandalous, or morally or legally questionable.

Even the normality of everyday life, as well as conduct of celebrities that is in no way objectionable, may be brought to the attention of the public if this serves to form public opinion on questions of general interest [...] To deny an article its role as contributor to the formation of public opinion merely because of its entertaining presentation, might also violate the content of the fundamental-rights guarantee of Article 10 of the Convention. [...] Even “mere entertainment” cannot per se be denied all relevance in the formation of opinions. [...] In recent times the significance of visual portrayals for press reporting has in fact increased.‘

Weighing of Interests by ECtHR: Privacy vs. Freedom of Speech

The ECtHR has first emphasized that the right to respect private life (Article 8 of the ECHR) and the freedom of expression (Article 10 of the ECHR) merit equal protection. Which right prevails depends on the circumstances. The following criteria are relevant for the weighing of interests in the present case (NB: and therefore not necessarily in cases in which other circumstances apply):

a) An essential criterion is the question (see the Princess Caroline I judgment) of whether an expression (photo or article) contributes to a debate of general interest.
The question to be answered in this judgment was when something qualifies as a subject that is of general interest (”debate of general interest“). According to the ECtHR, this depends on the circumstances of the case. Because this is not very clarifying, the ECtHR gave examples. The ECtHR has emphasized that the general interest is not only in reports about politics or crime, but also, for instance, in reports about sports or performing artists.

b) How well-known is the person and what is the subject of the article?
A distinction must be made between private persons and persons who are acting in a public context. Public figures must tolerate more. The ECtHR also refers to the fundamental distinction made in the Caroline I judgment between factual reporting that can contribute to a debate in a democratic society, for instance about politicians exercising their official functions, and reporting about details of the private life of an individual who does not exercise any official functions.

c) How the person in question behaved in the past
This is an interesting aspect in this judgment. It is important how the person in question has behaved prior to the publication, especially whether he himself actively sought publicity. Although this collaboration with the press does not mean that the person cannot act against publications anymore, it is indeed a relevant circumstance. Also relevant is the question whether the photo and the information had been published before.

d) The contents, form and consequences of the publication
It is, for instance, important how the person is depicted in the photo, and how the publication has been distributed (locally, nationally).

e) The circumstances under which the photos were taken
Did the person portrayed give permission for the photo and the publication? Was the photo taken surreptitiously? Furthermore, the seriousness of the violation of privacy and the consequences thereof are relevant.

Subsequently, the ECtHR has applied these criteria to the case and ruled that the German Court of Appeal could rightfully conclude that the illness of Prince Rainier is “an event of contemporary society”. Therefore, according to the ECtHR, the publication of photos of the skiing trip of Princess Caroline and Prince Ernst, which illustrated them enjoying their holidays while Princess Stéphanie stayed home in Monaco to care for the sick Prince Rainier, had been rightfully allowed by the German court. The photos contribute, at least to a certain extent, to a debate of general interest. In this respect the ECtHR also considered that according to the German court, two other photos of the skiing trip, which were only published for entertainment purposes, were not acceptable.

Can Media Now Make Up Relevant Circumstances?

The complaint of the Von Hannovers that media may abuse these criteria by simply inventing an event of contemporary society to illustrate private photos, was not well received by the ECtHR. We only adjudicate the publication in question, not future expressions, argued the ECtHR.

Official Function or Not Is Not Decisive

Also the reliance of the Prince and Princess on the distinction made in the Caroline I judgment between persons who exercise official functions and those who do not (they put themselves in the second category), does not save them. Even if they do not exercise any official functions, it is beyond dispute that Caroline and Ernst August are very well-known figures who therefore must put up with more media attention.

Summary
This judgment illustrates that the criteria from the Caroline I and II judgments are relevant circumstances, but that not meeting one or more of the criteria does not automatically make a publication unlawful. A fairly broad interpretation has been given of what contributes to a debate of general interest, while it has been emphasized that whether official functions are exercised or not need not be decisive for the question of whether a publication is acceptable. The ECtHR has also emphasized that it is important whether the person portrayed has actively sought to attract media attention in the past. All in all, in this Princess Caroline II judgment the ECtHR has given the fairly repressive Caroline I judgment a turn in the direction of the freedom of expression, so that the entertainment press has gained more room. And despite the distinction made in the Caroline I judgment between persons who exercise or do not exercise official functions, it is important that although the Von Hannovers do not exercise any official functions in the photo concerned, they are without a doubt very well-known figures who have to put up with more media attention. The question as to whether a Dutch celebrity is or is not exercising an official function in the photo is not decisive for the question as to whether the publication of the photo is lawful.

The movie tells the story of the 1983 kidnapping of Alfred Heineken and his driver Ab Doderer. It does not claim to be a documentary: it is based on facts, but also contains a lot of fictitious elements, including fictitious characters and storylines. The two kidnappers complained that their roles are played by actors who look like them and dress like them, and their real names are used (In the previous case, the character who resembled Holleeder was given a different name). As a result, they are fully identifiable and – according to the kidnappers – it will not be clear to the viewer which elements of the movie are fact, and which fiction. The movie is preceded by a general disclaimer:
This movie is a cinematographic interpretation of the 1983 kidnapping of Alfred Heineken and does not aim to document what actually happened. Facts are mixed with fiction. The characters that appear in this movie are also to a large extent based on fiction.

Meijer and Boellaard were not satisfied with this disclaimer, as it does not indicate exactly which scenes are factually correct and which are fictitious. Their complaints were especially aimed at three scenes in which violence and weapons are used. In these scenes, respectively, one of the kidnappers shoots at a taxi, in other scenes weapons are used, and in a third scene the suggestion is raised that Meijer hit his girlfriend and gave her a black eye.
Meijer and Boellaard claimed a more extensive and more specific disclaimer, which mentions that these scenes are fabrications. Also, they wanted this disclaimer published over the width and length of a full page in a number of newspapers.

The Court began its judgment by setting out the legal framework.
Allowance of the claim would entail a restriction of the right of freedom of expression to which IDTV is entitled, as set out in Article 10 of the ECHR. (…) In this case a lot of weight has to be attached to the fact that a maker of a film about a historical event is free – in view of the freedom of artistic expression – to use fictitious elements. (…) However, the freedom of the filmmaker may be limited if there are compelling interests of those involved in this historical event, especially the interest that they do not wish to be wrongly associated with fictitious elements that may constitute damage or damage to their reputation. Therefore, the question that has to be answered is whether there are such interests of Boellaard and Meijer, and whether in this case these interests outweigh the freedom of expression of IDTV.
The Court then points out the ‘chilling effect’ if the parties involved would get too much grip on the movie version of a historical event.

In this respect, the Court in summary proceedings is first and foremost of the opinion that, as also brought forward by IDTV, in this case there is no question of one single truth. The film is about an event which happened almost 30 years ago, in which various people were involved at various moments. Therefore, there is no clear-cut separation between fact and fiction, as Meijer and Boellaard claim. (…) Moreover, this [the detailed disclaimer –ed.] could lead to a “chilling effect”, in the sense that various persons involved will claim their “own” disclaimer. This way the persons involved in a historical event could get too much grip on the making and composing of motion pictures”

Next, the Court discusses the three movie scenes which Meijer and Boellaard specifically pointed out as being fictitious and harmful. With respect to all three scenes, the Court in summary proceedings is of the opinion that fictitious elements do not justify granting the claims.
Again, here it can be said, in the light of all facts and circumstances, that the fictitious elements are not so far removed from reality that the interests of Boellaard and Meijer are being affected in a serious manner.

With regard to the black eye the Court finds that this fictitious element, while very serious, is not damaging to Meijer’s reputation:
“(…) given the other violence in the film for which the kidnappers are held responsible and against which Meijer has not objected, [the element is] not so extraordinary that it sheds a completely different light on the person of Frans. The fictitious element does not further affect his reputation.”

The Court does consider that the disclaimer is on the screen for a fairly short time, which may mean that the average public does not immediately get the message. This is, however, in itself no reason to allow the claims. The public is, after all, aware that it is watching a motion picture and not a documentary. Furthermore, it is of importance that there has been extensive discussion in Dutch media about the mix of fact and fiction in the movie. IDTV also promised that the disclaimer on the DVD will be on the screen for a longer period, so that for the future it is sufficiently guaranteed that the public will take cognizance of it. An order to also show the disclaimer in the cinema version for a longer time would be disproportionate in view of the costs and the difficult practical feasibility thereof. All claims of the kidnappers are denied.

Movie producer IDTV was represented by Jens van den Brink  and Tessel Peijnenburg.

Sharpe’s claims in the first instance for damages and rectification were rejected by the Court of Amsterdam in preliminary relief proceedings, but the Court did impose a ban on Spits calling Sharpe porn baron or other names of that purport in the future. This restriction of the freedom of the press was a reason for Spits to appeal against the judgment. The Court of Appeal of Amsterdam rendered its judgment on 20 December 2011.

The Court of Appeal ruled that it is sufficiently plausible that in the period when Sharpe worked at Translease as business development director (1996-2001), the company focused substantially on the distribution of pornographic content. Sharpe himself said about the title of business development director − which was published in his CV on the PVV website − that it suggests more than it actually is. This argument was ignored by the Court of Appeal: the media could rely on the job description as mentioned in the CV, and could ascribe a normal meaning thereto. In other words: the media could assume that Sharpe indeed had a director’s position within Translease. Thus, the fact that he has ‘blown up’ the title himself cannot be held against the media.

Furthermore, according to the Court of Appeal, Sharpe has insufficiently substantiated that during the performance of his position he had nothing to do with pornography and he did not hold an influential position, although this would have been obvious for him. All in all, according to the Court of Appeal there is sufficient factual ground for the expressions. This, together with the fact that as a (former) politician − who, moreover, does not exclude his return to the Lower House of Parliament in the future − Sharpe must have a thicker skin than an ordinary citizen, resulted in the Court of Appeal’s final rejection of all Sharpe’s claims. The judgment was quashed.

In these proceedings Spits was assisted by Jens van den Brink and Reindert van der Zaal of Kennedy Van der Laan.

Licenses for online games of chance

Dutch legislators are currently working on a legislative proposal that shall introduce a licensing sheme for online games of chance. We expect more information on this act in the course of next year. State Secretary Teeven is trying to implement the changes before the end of 2014. The legislative proposal will provide for a system of registration and identification of players, in order to prevent games of change being offered to persons under the age of 18 or to persons with a gambling problem. Providers of online games of change shall have to monitor, analyze and, in case of dangerous gaming behaviour, intervene. Market participants will have to await the legislative proposal to learn the details of the proposed legislation. We shall keep you informed!

The European Commission draft proposal for a data protection regulation contains the so-called right to be forgotten in Article 15. This is not a surprise but the way it has been drafted is quite terrible as I will try to explain below.

Commissioner Viviane Reding made a right to be forgotten into one of the central themes of the privacy directive’s review of the last two years and her plans to modernize the existing legal framework for the processing of personal data in the EU. While there are some valuable improvements to the existing data protection rules in the EC’s concept proposal, this right to be forgotten is amongst the worst legal inventions I have ever encountered. Below I first shortly discuss the proposal and give 9 reasons why it is really wrong and why it should be abolished.

The basic principle of the ‘right to be forgotten’ is that data subjects can ask for deletion of personal data. This right to be forgotten is an extension of the existing right of erasure with regard to personal data processing in Article 12 of the Privacy Directive, and specifically targets personal data which have been made public, such as the name or picture of a natural person on a discussion forum. It also extends to links to publications containing personal data, for instance in search engines. Read the full article and why this proposal is a bad idea on Joris van Hoboken’s blog here.

This text has been reproduced with consent of the author.

The facts
In 1983, Dutch beer tycoon Freddy Heineken and his chauffeur Doderer were kidnapped by a group of five men, among whom the claimant in this case, Willem Holleeder. After having been locked for three weeks in two damp cells, without heating and chained to the wall, Heineken and Doderer were freed by the police. The kidnappers escaped with EURO 13.6 million ransom money, but were eventually caught and convicted. These dramatic events are the basis of the movie “De Heineken Ontvoering” (The Heineken Kidnapping), starring Rutger Hauer as Alfred Heineken and produced by IDTV, which was planned for release on Oct. 27, 2011 in The Netherlands.

The movie does not claim to be a reconstruction of what happened. A disclaimer appears before the start of the actual movie, which reads:

“This movie is a cinematographic interpretation of the 1983 kidnapping of Alfred Heineken and does not aim to document what actually happened. Facts are mixed with fiction. The characters that appear in this movie are also to a large extent based on fiction.”

Holleeder is not, in fact, a named character in the movie. In the group of kidnappers in the movie, a character called “Rem Hubrechts” appears. His character development in the movie is based on elements of Holleeder and one of the other kidnappers, sprinkled with a liberal dose of fiction. Willem Holleeder, dubbed “The Nose” in Dutch media, did not just become a public figure through the kidnapping, for which he was sentenced to 11 years in 1986. He is currently serving a new nine-year sentence in an unrelated extortion case and is generally seen as the most infamous criminal in The Netherlands.

Holleeder started summary proceedings against IDTV, the producer of the movie, from his cell in the high-security prison. He asked for an injunction banning the release of the movie and, alternatively, demanded a private pre-screening of the movie to enable him to check it for ‘harmful content’. He based his claims on a violation of the right to privacy (art. 8 ECHR) and a violation of his image rights. The latter because the character ‘Rem’ is (partly) modeled after him in terms of his actions, but also because the actor who plays Rem and Holleeder look alike physically. 

Artistic freedom v. right to privacy
The Court first establishes that both parties agree the public may associate Rem with Holleeder. The Court considers that Holleeder’s demands infringe on the right to freedom of expression (art. 10 ECHR), which encompasses the right to artistic expression. Also, his demand for a pre-screening encroaches on the prohibition of censorship, as enshrined in the Dutch Constitution. In effect, the Court finds Holleeder’s demands would amount to censorship.

The right to privacy may limit the right to free speech. However, as the European Court of Human Rights determined, the right to privacy does not encompass a right to prior notification of content that may harm someone’s privacy (ECHR 10 May 2011, 48009/08, Mosley v. UK). Whether or not an expression is lawful can in principle be determined only after publication.

With respect to the Heineken movie, the Court finds no facts or circumstances which would result in an exception to this principle. At the hearing, counsel acting for Holleeder had highlighted several scenes in the movie which Holleeder considered defamatory. They had not yet seen the movie (it was only shown to limited audiences before its nationwide opening) but had come across these scenes in the trailer and in a script of the movie which, as the Court formulates it, “counsel for Holleeder found on her desk” (par 3.2).

The Court concludes that on the basis of what is known so far of the contents of the movie, the movie is not unlawful to the extent that it would justify encroaching on the freedom of expression and the prohibition of censorship. The Heineken kidnapping was a major event in Dutch history and shocked Dutch society. Art. 10 ECHR protects the public interest which is served by making a movie about the kidnapping. The fact that Holleeder participated in the kidnapping ensures that any movie about it will somehow be connected to him. That does not make such a movie unlawful.

The core consideration of the court is as follows:
“The maker of a movie about a historical event is, in principle, free to add new, fictitious elements to his depiction of this event. He is also free to use actors who show a certain likeness to persons who were actually involved in the event depicted in the movie. (…) This freedom, however, is limited by the interest of someone who was involved in the actual event to not be linked with such fictitious elements.”

With respect to the Heineken movie, the Court finds that the boundaries of the freedom of expression were not crossed. IDTV made sufficiently clear that the movie is a mix of fact and fiction.

Image rights
Holleeder also argued that the film makers violated his image rights. On this ground, he demanded a complete stop on the use of his ‘image’ (i.e. the image of the actor playing the fictitious character ‘Rem’) in the movie as well as in advertisements for and on the website of the movie. The Court finds that it will be clear to the movie-going public that the person behind the character Rem is actually an actor, and not mr. Holleeder. This is especially so given the fact that the events in question occurred almost 20 years ago and that it is not unusual for actors in movies based on historical events to show similarities to the persons they are modeled after. The character Rem, as a result, is not a portrait of Holleeder.

Conclusion
The movie was released on October 27 as planned, as the Court had already rendered a dressed down version of its judgment on Oct. 21. As is common in urgent cases, the motivation of the judge followed a week later. The judgment is good news for filmmakers who aim to make a historical or biographical movie: they are given considerable leeway to add fictional elements and do not have to seek explicit approval of the people they want to depict before the movie is released. The court appreciated the strong chilling effect that would occur if prior notification would be imposed. That chilling effect is especially strong where it involves the depiction of a true crime. Obviously film makers will think again if basing a film on a true crime would force them to ask for the input of the criminals involved. 

Here and here is some international news reporting on the case. Here is a news item on the case on BBC news in relation to the release from prison of Willem Holleeder.

Movie producer IDTV was represented by Kennedy Van der Laan’s Jens van den Brink

We recently covered the adoption by Dutch Parliament of a bill that transposes the amendments to the ePrivacy Directive. This bill introduces the requirement of prior consent and the assumption of processing personal data when cookies are used for certain purposes. The use of cookies is assumed to be a form of processing personal data if the collecting, combining or analysis of data concerns the user’s use of information society services and is conducted for commercial, charity or non-commercial reasons. This assumption seems to specifically target cookies that are used for behavioral advertising.

It is generally quite normal for the Dutch Senate to merely deal with bills that have been adopted by Dutch Parliament as a formality, a so-called “hamerstuk”. However, several stakeholders (Bond van Adverteerders, Centrum voor Merk en Communicatie, Dutch Dialogue Marketing Association, Interactive Advertising Bureau, Nederlands Uitgevers Verbond, Thuiswinkel.org, PMA and VINEX) have requested (PDF) the Dutch Senate to substantively review the bill that has been adopted by Dutch Parliament. The stakeholders´ request letter contains several arguments against the adopted bill. According to these stakeholders, the adopted bill is at odds with the ePrivacy Directive´s goal of a harmonized privacy regime across the EU. This would put Dutch providers at a competitive disadvantage compared to their competitors in other Member States.

The letter refers to three observations made by Kennedy Van der Laan in an analysis of the adopted bill. The three observations the letter refers to are:

• the assumption of processing personal data when cookies are used for certain purposes extends the scope of the Dutch Data Protection Act (”DDPA”) to activities that do not involve the processing of personal data;
• this assumption reverses the burden of proof when cookies are used for certain purposes, even though such a reversal does not currently exist under the DDPA;
• the explanatory text of the bill seems to suggest that the aforementioned assumption is incontestable.

It is now up to the Dutch Senate to decide whether they will deal with the adopted bill as a formality or that they will pursue a substantive review.

Sex Tape Leads to Struggle About Pre-Notification Right

For background information see this earlier posting on MediaReport (in Dutch). After Mosley had won this case, he instituted legal proceedings against the United Kingdom before the European Court of Human Rights, because he was of the opinion that the United Kingdom should have ensured that he should have been notified prior to publication, because according to him, this was the only way to avoid the damage that he had suffered. The ECHR does not agree.

Judgment of the ECHR: Prior Inspection Would Have a Chilling Effect
Although the right to respect private life of Article 8 of the European Convention on Human Rights may also imply positive obligations for the Member States, the English legal system contains sufficient measures to protect personal privacy. In principle, damages in arrears provide sufficient satisfaction for an infringement of personal privacy as protected by Article 8 of the European Convention on Human Rights. The ECHR has furthermore explicitly pointed out that Mosley’s claim that a right to inspection prior to publication should be implemented does not only have consequences for a case like Mosley’s, which concerns a publication of a sex video by a “sensationalist” tabloid newspaper, but also for serious investigative journalism and political reports.

The ECHR has also pointed out that “any pre-notification requirement would only be as strong as the sanctions imposed for failing to observe it.” That is an additional point of concern. After all, penalties or penal sanctions may be in conflict with the freedom of expression of Article 10 of the European Convention on Human Rights, especially if it concerns a form of censorship prior to publication. This threat would have a chilling effect on political reporting and investigative journalism. The ECHR has therefore concluded that Article 8 of the European Convention on Human Rights does not require a right of inspection. Mosley’s claim has therefore been rejected.

Relevance for the Entertainment Press
The judgment also contains an interesting consideration about the entertainment press:

“The Court … recognises that the private lives of those in the public eye have become a highly lucrative commodity for certain sectors of the media … The publication of news about such persons contributes to the variety of information available to the public and, although generally for the purposes of entertainment rather than education, undoubtedly benefits from the protection of Article 10. However, as noted above, such protection may cede to the requirements of Article 8 where the information at stake is of a private and intimate nature and there is no public interest in its dissemination.”

Although at first sight this might look like bad news for the people in the Netherlands that love showbiz news, on a further reading it does not seem so bad. On the basis of the Princess Caroline of Monaco judgment, it is now often said that “non-news” about the stars (”Princess Caroline out and about in Paris”) may only be published if there are reasons of public interest. The ECHR has now confirmed that this goes too far. Such a publication may be a problem if there is no public interest and it concerns information of a personal and intimate nature, according to the ECHR. Especially the claim that it must be of an intimate nature will not apply in many cases. Here I have written an article before about the Caroline II case, a continuation of the earlier Caroline judgment, which currently lies before the ECHR. The verdict in the Caroline II case is also expected shortly. In that case more clarity will probably be provided about the boundaries for the entertainment press.

Please find the judgment in the Mosley case here and a press release of the ECHR here.

Mosley has indicated that he will appeal against the judgment to the Grand Chamber of the ECHR: “It’s not finished yet. It’s round one to the Government. I hope there is going to be a round two, and it will end up a knockout in my favour,” according to Mosley.

The Grand Chamber recently refused the appeal.

By introducing the requirement of prior consent and the assumption of processing personal data when cookies are used for certain purposes, Dutch law goes further than what the ePrivacy Directive required Member States to do. As expected, this new law has stirred and will stir up quite a lot of controversy in the Netherlands and abroad.

Prior informed consent

The new “cookie law” is part of a larger bill amending the Dutch Telecommunications Act (”DTA”), thereby implementing the changes to the European ePrivacy Directive. Article 11.7a under 1 DTA only permits online entities to store information or to gain access to information stored in the terminal equipment of a user (e.g. storing or accessing cookies) where (i) the user is provided with clear and complete information in accordance with the DDPA, and in any event about the purposes for which the information is stored and accessed; and (ii) the user consents to such an act. The word consent in this article refers to the definition of consent in Article 1.1 (i) DDPA and should therefore be a freely-given, specific and well informed consent. According to the explanation provided to the bill, the common practice where web browsers automatically accept all cookies under its standard settings cannot be considered as a form of consent within the meaning of this new article. The explanation provided to the bill also explicitly states that such consent should be obtained prior to the storage of and access to cookies.

Presumption of processing personal data: “unambiguous” consent?

The first sentence of article 11.7a under 1 DTA leaves no doubt that the DDPA will apply to the storage of and access to cookies if this entails a processing of personal data (”Notwithstanding the DDPA…”). According to the last sentence of article 11.7a under 1 DTA, the act of storing and accessing usage information via cookies is presumed to be subject to the DDPA if the collecting, combining or analysis of such usage data concerns the user’s or subscriber’s use of information society services and is conducted for commercial, charity or non-commercial reasons. This element in the new law seems to specifically target cookies that are used for behavioral advertising. Such cookie usage is simply assumed to be a processing of personal data. Furthermore, the legislator seems to imply in the explanatory text that the processing of personal data as set out above should be based on “unambiguous” consent. Interestingly, the DDPA contains several other legal grounds upon which personal data may be processed. For instance, processing of personal data may be allowed in order to uphold the legitimate interest of the data controller being the party processing the data (Article 8 (f) DDPA).

Back to the past or to the future?

The new law appears to undermine the current widespread practice of the so-called opt-out regime whereby cookies are stored and accessed without obtaining prior consent from users. The Dutch legislator has clearly chosen for an opt-in approach. Time will tell whether this law will lead to an “online exodus” to other countries that have a more lenient approach towards the implementation of the ePrivacy Directive or to new practical ways to obtain the user’s informed (unambiguous) consent before placing and accessing cookies. There is a possibility, though, that the new law will only be a spur to the adoption of new technologies to monitor user behavior, for instance through a browser’s “fingerprint”, that will make the use of cookies obsolete.

Louis Vuitton claimed that Plesner’s artworks infringed upon her design rights on the bag. Plesner relied on her fundamental right on freedom of speech. More specifically: her artistic freedom. After Plesner successfully challenged a judge of the Court in preliminary relief proceedings at an earlier stage, (another judge of) the Court in preliminary relief proceedings rendered a judgment in this case yesterday. The Court ruled completely in favour of Plesner. We published an English translation of the verdict here.

From the moment the case got a lot of media exposure, Louis Vuitton suddenly claimed that the case had nothing to do with ‘Darfurnica’, and that therefore the ex parte order did not extend to this painting. Louis Vuitton did not get away with that. The Court rules that “also the exhibition and the offering for sale of the painting fall under the prohibited acts since they are described in number 14 of the application and the Court in preliminary relief proceedings has referred to the operative part of the judgment.” However, since Louis Vuitton stated during the hearing that it had “no problems at all” with the painting, the judgment focuses on the Simple Living drawing (the above illustration).

The Court balances Plesner’s right on freedom of speech (Article 10 of the ECHR) with Louis Vuitton’s right on peaceful enjoyment of property (Article 1 of the first Protocol of the ECHR). The Court rules that “the interest of Plesner to (continue to) be able to express her (artistic) opinion through the work “Simple Living” should outweigh the interest of Louis Vuitton in the peaceful enjoyment of its possession.”

In that respect, the Court rules that artists enjoy a considerable protection with regard to their artistic freedom, in which art may “offend, shock or disturb”. Plesner uses Louis Vuitton’s reputation to pass on her society-critical message (the situation in Darfur) and, besides the bag, she also depicts another luxury/show business picture in the form of a Chihuahua dressed in pink. Plesner did not suggest that Louis Vuitton would be involved in the problems in Darfur. Furthermore, the circumstance that Louis Vuitton is a very well-known company, the products of which enjoy a considerable reputation, which it also stimulates through advertising famous people, moreover implies that Louis Vuitton must accept critical use as the present one to a stronger degree than other rightholders.

The Simple Living drawing has to be regarded as a lawful statement of the artistic opinion of Plesner. Plesner does not infringe upon Louis Vuitton’s design rights. The Court adds: “This is not different if the illustration is somewhat used as an eye-catcher, all the more because Plesner has argued, insufficiently refuted, that the work occupies a central position in her oeuvre (concerning Darfur) and that to that extent establishing extra attention (for the exhibition with the problems in Dafur as a theme) is justified.” Therefore Plesner can also use the drawing as an eye-catcher, something Louis Vuitton heavily opposed.

In the end, the Court quashes the ex parte order with retroactive effect, which means that penalties possibly forfeited by Plesner, will not be due. By doing this, the Court overrules its earlier judgments in this respect:  “In view of the fact that the respondent does not have any other remedies with which such a measure can be disputed, under preliminary judgment - different from what the Court in preliminary relief proceedings of this Court assumed on 14 December 2009, iept 20091214 (Kruidvat - Adventure Bags) - the review of the decision can be given with retroactive effect. After all, a different judgment would imply that the forfeiture of penalties in the interim as a result of a(n) (as afterwards ruled: wrongly) issued ex parte decision cannot be cancelled in any way whatsoever, since according to established case law proceedings on the merits to be instituted cannot affect the forfeited penalties as a consequence of the preliminary measure. Therefore, the Court in preliminary relief proceedings is convinced and will therefore pronounce the quashing with retroactive effect.”

An important victory for the artistic freedom. We are very happy for Nadia.

Nadia Plesner is represented by Jens van den Brink, Christien Wildeman and Reindert van der Zaal.

The judgment (in English) can be found here.

An important victory for artistic freedom. We are very happy for Nadia.

Nadia Plesner is represented by Jens van den Brink, Christien Wildeman and Reindert van der Zaal.

In a ‘Key Objectives Copyright Letter’ (Speerpuntenbrief auteursrecht) the State Secretary Teeven of Safety and Justice has made clear on 11 April 2011 which direction the government wants to take with copyright. The key objective will be to promote and protect new business models on the Internet by means of a bill on combating infringement-facilitating websites and a reconsideration of the private copying exception. For that purpose, downloading from evidently illegal sources will be declared unlawful. The government is trying to find a balance between the protection of rightholders and the importance of an open Internet. The other three key objectives mentioned in this letter relate to copyright organizations, copyright contract law and the European harmonization of copyright.

The Projected Government Policy in Broad Outline
The criminalization of internet users or the disconnection of the Internet is out of the question. There will be no ‘three-strikes legislation’ as has been introduced in France and the United Kingdom.

Enforcement will be directed against commercial websites and services facilitating the exchange of files that are not authorized by the copyright holder. An approach directed at the websites fits in best with the expected technological development that downloading will be more and more replaced by streaming. Existing case law stipulating that websites and services facilitating copyright infringements are acting unlawfully, will be codified.

The government does not want to enforce the rules for consumers who upload and download files on a limited scale, because this is not effective and would create legal inequality, since not everyone can be sued. If rightholders want to protect their rights, they may do so by making use of technical provisions that protect works or guarantee that these works will only be available against payment (legal offer). Statutory guarantees will be introduced to ensure that
rightholders cannot enforce the surrender of personal data from consumers who are uploading and downloading on a limited scale. Personal data may only be surrendered if a court has concluded that someone has been guilty of large-scale copyright infringements and if it has proved impossible to effectively sue the website administrator or the hosting provider.

The government proposes two legal measures. The first is the right of the rightholder to prohibit downloading from evidently illegal sources. This is a civil-law measure. Moreover, infringement-facilitating websites and services can no longer hide behind the argument that they are only facilitating the downloading and not the uploading. The State Secretary has observed in this respect that there is no question of criminalization, because downloading from evidently illegal sources will become unlawful (in a civil-law respect) and not punishable.

The second legal measure consists of the offering of options to rightholders to act against infringement-facilitating websites and services which are located abroad and are using a foreign hosting provider. On the basis of existing case law and the regulations for internet service providers in the Electronic Commerce Directive, it is already possible to force infringement-facilitating websites and services from the Netherlands to close down. The notice-and-take-down code of conduct plays a role here. A p2p file sharing website established in the Netherlands which is systematically facilitating and promoting copyright infringements acts unlawfully towards the rightholder and may be forced by a court to cease its activities. And if the website is offered from abroad, the obligation may be imposed on the access provider – as an ultimum remedium – to block this website.

Conclusion
The government has made a number of clear choices. Downloading from illegal sources will be prohibited, just like in almost all other European countries. Enforcement will not be directed against individual consumers: there will be no ‘three strikes you’re out’ legislation like in France, and ISPs will only have to surrender the personal data of consumers in exceptional cases. Enforcement will be directed against commercial intermediaries. The same line has been taken by rights organization Brein for some time already. There will be an amendment of the law to give a statutory basis to all plans of the government. This bill will be discussed in Parliament, and it is expected that before the Act will inter into force, at least one year will have passed.

Under the Act on Games of Chance (Wet op de Kansspelen, “WoK”), the Netherlands have a restrictive games of chance policy, in principle only allowing the organization of games of chance with a government license. Organizing games of chance through the internet is prohibited altogether at present, and licenses for sports and horseracing bets can only be granted to one party. In the years 2004 and 2005, the Minister granted such licenses to De Lotto and Scientific Games Racing (SGR), respectively. In 2005 the British enterprise Betfair, a provider of online games of chance, objected to these granted licenses and applied for a license itself to organize sports and horse racing bets (including through the Internet). However, the Minister turned Betfair’s application down with a reliance on the single-license system and the ban on online games of chance under Dutch law.

Betfair did not leave it at that. After the Court had rejected its appeal against the Minister’s decision, Betfair appealed to the Council of State. Betfair argued that the Minister’s decisions were contrary to the free movement of services in the EU, and that Betfair would not even need a Dutch license to offer online games of chance, because it already had valid licenses to do so in other European Member States.

The Judgment of the Council of State

Before deciding on this mater, the Council of State asked the European Court of Justice (ECJ) questions of interpretation concerning the principle of free movement of services. The answer to these questions came on 3 June 2010, simultaneously with the ECJ’s ruling in the Ladbrokes case in which the restrictive Dutch games of chance policy was also the subject of dispute (but was not rejected). In the Betfair case, the ECJ did not reject the Dutch single-license system as such. The ECJ did find that the few licenses available for games of chance should be granted in a transparent and non-discriminatory (read: fair) manner, unless the license is granted to (in brief) an operator whose activities are subject to strict control by the public authorities.

The ECJ concluded that the licenses to De Lotto and SGR had not been granted in a transparent manner, and left it to the Council of State to determine whether De Lotto and SGR could qualify as operators whose activities are subject to control by the public authorities, as mentioned above, so that no transparency in the licensing procedure would have been required at all. The Council of State has now answered this question negatively. This means that there was no justification for the Minister to grant the games of chance licenses rashly to De Lotto en SGR, without subjecting them to competition. Betfair should have been given the chance to compete for these licenses.

Furthermore, the Council of State ruled in accordance with the Bwin/Santa Casa and the Betfair judgments of the ECJ that the fact that Betfair has a British license for online games of chance does not mean that it may organize online games of chance in the Netherlands too.

Conclusion

The Council has set aside the decisions of the Minister on the objections of Betfair against the granting of licenses to De Lotto and SGR. The Minister will now have to render a new decision on these objections, and hardly has any other choice but to declare them well-founded, because of the non-transparent procedure that has been followed. A new licensing procedure is ahead, in which the licenses of De Lotto and SGR may not stand up. All in all, finally a victory for a foreign provider of games of chance that has been trying for years to enter the Dutch games of chance market.

However, the ruling of the Council of State (still) does not mean that: 1) the licenses should not have been granted to De Lotto and SGR in the first place; 2) the Dutch games of chance policy is generally not permissible - we still have to await a final ruling in the Ladbrokes case from the Supreme Court; 3) Betfair can now legally offer online games of chance in the Netherlands, to which the licenses of De Lotto en SGR do not extend, and which is still illegal at present.

The developments in the games of chance field are to be continued; not only in the settlement of this issue with Betfair, but especially also in the Ladbrokes case and the elaboration of Mr Teeven’s policy vision.

The restrictive Dutch games of chance policy, which gives a limited number of operators like Holland Casino and De Lotto a permanent monopoly based on a government license, has been severely criticized in the past years by the European Commission and foreign (online) providers of games of chance, among others. With its Betfair and Ladbrokes rulings of last year, the European Court of Justice still backed up the then Minister of Justice Hirsch Ballin to maintain this policy.

However, the current government has chosen to steer a different course, the omens of which could already be found in the coalition agreement of the current government. This coalition agreement contains a paragraph forecasting extra income from the granting of licenses for online games of chance. At present the offering of games of chance through the Internet is still illegal in the Netherlands Teeven would like to put an end to this ban - under specific strict conditions - and to introduce an open license system for gambling sites, to be subjected to ‘good and sound control.’ The intended legalization of online games of chance is not limited to poker, as the Jansen committee had advised the government at the end of 2009, but also includes other games such as casino games, sports bets and bingos. Besides, poker will not only be liberalized in the online environment, but also in physical locations, such as pubs and sports canteens.

Besides unlocking the online games of chance market, Teeven wants to strengthen market forces in the ‘regular’ games of chance market by admitting new providers on the market of lotteries, sports sweepstakes, horse races and casinos.  

The Code of Conduct for Promotional Games of Chance should also be clarified “in some respects”, in any case as far as the communication costs are concerned. Teeven is inclined to introduce a provision in this Code, limiting the actual costs that may be charged to a maximum varying between €0.40 and €0.45. This is especially relevant to texting services, like voting by text message in talent shows. 

All in all, a great deal more of legally playing will become possible in the Netherlands. This is in line with existing practices, where participation in online games of chance of foreign providers is still possible, although it is illegal on paper. Incidentally, new providers of games of chance will still have to wait a while: the possible new system will not be in place before 1 January 2015.

There is now an English translation of the Dutch court order available here.

As it now appears, Louis Vuitton has obtained an ex parte order (in Dutch) against Plesner from the Court of The Hague in preliminary relief proceedings. For non-lawyers: ex parte means that Plesner has not been heard by the court and has therefore been unable to bring forward a defense. She only became aware of this order when a bailiff served the decision on her. On pain of a penalty of EUR 5000 per day (without a maximum), Nadia Plesner is prohibited, inter alia, from showing or exhibiting her painting in the European Union. She is also prohibited from showing the painting on her website.

The boy concerned was also depicted before by Plesner in a freestanding work of art, at which Louis Vuitton also took offense: Louis Vuitton obtained an ex parte order against Plesner in France. On that occasion Plesner did not bring forward a defense against this order, because it looked like Louis Vuitton would leave it at that. This time Plesner will defend herself against this unacceptable infringement of her freedom of expression and artistic freedom. To be continued.

Update 11 March: an English translation of the court order can be found here.

Update 15 March: Nadia will start summary proceedings against Louis Vuitton to have the court order against her lifted. The court hearing will take place on March 30, at 14:00 h CET, at the court of The Hague.

Update 29 March: The injunction hearing has been postponed to April 20st due to a challenge of the presiding judge. After a hearing on March 28, the challenge will be discussed anew on a second hearing on April 4.

Update 30 March: The judge has decided to step down. A new judge has been appointed to take over the hearing on April 20.

Nadia Plesner is represented by Christien Wildeman and Jens van den Brink.

This court order against the Spanish paper violates the freedom of expression set out in Article 10 of the European Convention on Human Rights, the European Court of Human Rights recently ruled in Gutiérrez Suarez against Spain (in French; an unofficial English translation can be found here). The public has the right to be informed of drug trafficking in which the Moroccan Royal Family appeared to be involved, also if at first sight this has no effect on the exercise of the political functions of the family.

The court noted that the correctness of the facts was not disputed in the Spanish proceedings. The media are free to choose in which way they report about an incident. It was not the task of the Court of Justice, or that of the domestic courts, to interfere with the editorial freedom and to determine which journalistic techniques should be used. The headlines do not alter this opinion, as they should be read in conjunction with the body of the article.