The Court of The Hague ruled on 11 July 2012 in proceedings on the merits in the umpteenth case between Pretium and the Dutch broadcaster TROS. The introduction of the judgment immediately demonstrates the exceptional size of the legal battle of Pretium against the TROS. The judgment starts with a list of as much as 42 procedural steps that have occurred until the date of the judgment. Mind you: these are only the proceedings on the merits in the first instance. Earlier, in preliminary relief proceedings, the parties have fought their battle up to the Supreme Court, culminating in a judgment of the Supreme Court of 8 April 2011, which ruled in favour of the TROS. This judgment of the Court of The Hague of 11 July 2012 is therefore yet another judgment between the parties, but therefore not less interesting.

The judgment is very much worth reading for all consumer columns in newspapers and on TV. Below you will find the most important considerations of the court.

Mentioning Complaints Is Also Allowed Without Individually Checking the Validity

Pretium has pointed out that it is true that the TROS has submitted 70 complaints, but that the relevant question is how many of these complaints are valid. The Court disagreed. The TROS could conclude from the dozens of complaints about Pretium's cold calling that a large group of consumers were dissatisfied or annoyed with this telephone marketing. It is not necessarily relevant if all these complaints are valid. It could not reasonably be required of the TROS to examine all claims individually before concluding that there may be abuse. (ground for the decision 4.7)

Elderly People Are Not A Specific Target, But They Are Caught Off Guard

According to the Court it has not been proven convincingly that in its call center Pretium approached elderly people as specific targets. However, it did appear from the complaints that especially elderly people are caught off guard by Pretium's cold calling, which is experienced as aggressive. Elderly people are victims of this approach more easily. That is the reason why the statements of the TROS were allowable. (ground for the decision 4.13)

Guideline of the Netherlands Press Council Not a Criterion To Be Legally Assumed

The Court follows the consideration of the Dutch Supreme Court, which determined in the preliminary relief proceedings that the Guideline of the Netherlands Press Council is not a criterion that can be applied legally, but a circumstance which, although it will usually carry weight, does not have to be decisive in the adjudication of the lawfulness. The Court furthermore pointed out that the starting point in the Guideline that, in principle, recording with hidden equipment is inadmissible − what this case is about − is not absolute and that it can be deviated from under circumstances. In this case, the TROS was rightfully of the opinion that an undercover action was adequate and proportionate. Also, in view of its sales method, the TROS could not approach Pretium as a potential customer.

Cutting the Recorded Material

The Court found that the TROS had not always chronologically pasted the cuttings of the (many hours of) recorded material for the benefit of the broadcasting. Some parts have been pasted in such a way that an incorrect impression may be created of the contents of a conversation with a costumer. Still, the TROS did not exceed the bounds of impropriety because the compilation sufficiently conformed to the image that is created when watching the rough recording material. (ground for the decision 4.21, 4.22)

Internet Forum

For the consideration of whether the illegal contents of the forum postings can be attributed to the TROS "it is important whether the TROS selects postings actively, edits them or assesses them before publication, or checks the validity thereof only afterwards, whether or not at the request of visitors or third parties." The latter is the case here and in that case the TROS only acts unlawfully if after a notice it does not remove postings with an obvious illegal content within a reasonable term. And the TROS has shown that it treats such requests correctly and takes measures if necessary. (ground for the decision 4.33)

Pretium cannot invoke the own rules of conduct of the TROS forum against the TROS, if only because these rules only relate to the decent use of the forum. (ground for the decision 4.35)

Finally, the Court also ruled that the TROS correctly settled a penalty forfeited by TROS in the amount of EUR 500,000 against another penalty of EUR 500,000, which was forfeited by Pretium.

The Court rejected all Pretium's claims.

Recently, Pretium also lodged an appeal against a judgment in a case against de Volkskrant. It cannot entirely be excluded that Pretium will also lodge an appeal against this case against TROS.

First published in the Kennedy Van der Laan newsletter - July 2012

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.