Marcel B. is a co-suspect in the fraud case concerning the notorious collapse of the Rotterdamsche Droogdok Maatschappij NV (RDM). The main suspect is Joep van den Nieuwenhuijzen, who became known in 1982 as spokesman of the Van der Valk family in the kidnapping of his then mother-in-law Toos van der Valk. Later, Van den Nieuwenhuijzen was given the nickname 'the company doctor' because he would acquire ailing businesses and make them profitable again. His good reputation has been long lost, since he was connected several times to fraud and bribery.
Judgment of the Netherlands Press Council as a Leg-Up to Court
Marcel B. was a financial controller with the RDM group of companies for some time. He did not want to be mentioned by his full name Marcel Borgers in the book "Joep! Van held tot hoofdverdachte" (Joep! From Hero to Main Suspect) of financial journalist Philip de Witt Wijnen and in a prepublication in Quote magazine. After all, it is customary in the Netherlands to refer to suspects in the media only by their initials. Borgers submitted a complaint to the Netherlands Press Council (NPC). Next, a somewhat vicious message was published in Quote about this complaint, illustrated with a photo of a crying baby and the closing words "POSTSCRIPT We are sorry Mr. Borgers".
The NPC found for Borgers: his privacy has been affected disproportionally by the mention of his full name rather than only his initials, as is customary in journalistic circles. Probably supported by this decision, Borgers initiated civil proceedings in which he claimed damages from the journalist and the publishers in the amount of more than €95.000. Borgers relied on Article 8 of the ECHR, the right to respect for his private and family life. According to him, mentioning his full name has no relevant social interest at all, let alone a social interest that outweighs his individual interest in not being mentioned.
Adjudication and Substantiation of the Court
In a judgment of 7 March 2012 the Court of Amsterdam rejected all Borgers' claims. The Court substantiated its judgment elaborately and also took the following circumstances into account.
The Court considered, amongst other things: "It is furthermore important that the reporting about Borgers in the publications is limited to his professional acting as financial controller with the RDM group of companies." This is in line with the recent Springer judgment in which the ECtHR considered: "In order for Article 8 to come into play, however, an attack on a person's reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life." With this, the ECtHR has created a barrier for the protection of reputations on the basis of Article 8 of the ECHR. Moreover, the ECtHR makes it clear that Article 8 does not offer protection against damage to the reputation that is the result of a person's own (criminal) acts: "The Court has held, moreover, that Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one's own actions such as, for example, the commission of a criminal offence."
A consideration of the Court of Amsterdam that is also interesting for future publications is: "Borgers has not disputed that in so-called narrative biographies, in which category the book falls, it is customary, at any rate it often happens, that names of suspects are mentioned in full. Thus, the mentioning of the name of Borgers is in accordance with the style and design of literary non-fiction."
To conclude, it is not new but indeed reassuring that the Court had no problem ignoring the decision of the NPC: "The violation of a journalistic principle to mention only the initials of those who are the subject of judicial investigations [...], cannot be put on a par with the violation of a statutory provision."
Is Mentioning the Full Name of Suspects Now Allowed Forever?
No, this judgment does not say that mentioning the full name of suspects is now always allowed according to the Court. This will depend on the actual circumstances of the case. This judgment of the Court of Amsterdam - that is well supported by reasons - does show that the Court has an eye for considerations and interests of (investigative) journalism and does not protect the suspect rashly.
By contrast, the NPC creates the impression – by sticking under all circumstances to a moral agreement from 1953 to mention suspects by their initials – that it is not open to a discussion about social and journalistic changes. One has reason to rightly wonder whether the freedom of expression and especially investigative journalism are in goods hands with the NPC. This judgment is food for thought.
First published in the Kennedy Van der Laan newsletter - March 2012
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