The preliminary relief proceedings of Thierry Baudet (a Dutch MP) and Forum voor Democratie (FvD, a political party) against VPRO (public broadcasting company) were always seen as having low potential for success. It was therefore not surprising that Baudet’s and FvD’s claims were rejected. Nevertheless, the well-founded judgement provides some interesting considerations. For instance, the judge in preliminary relief proceedings discussed the legal difference between quoting and paraphrasing, and it became clear just how important it is to claim a correct rectification text. Thomas van Vugt, an attorney specialised in media law, discusses the verdict.
It would have been hard for almost everyone to not be aware of the reason for the preliminary relief proceedings. In the television programme Buitenhof of 23 February 2020, the presenter, interviewing former FvD member Henk Otten, asked an opening question about a statement by Baudet in the House of Representatives in the previous week:
“Thierry Baudet caused a stir in the House of Representatives last week by saying that he thinks the EU has a premeditated plan to replace the white European race with African immigrants. That caused Deputy Prime Minister De Jonge to say last Friday that is very radical language, and I actually want to call on everyone to speak out against it. What is your opinion about this?”
The presenter did not literally quote from what had actually been stated. Instead, she described the content of the relevant statement in her own words. She paraphrased rather than quoted Mr Baudet. It has been established in case law that a person has more freedom when paraphrasing; however, the law sets out that paraphrasing must do sufficient justice to what has been said. And that obligation becomes more binding if the paraphraser knows that it is a socially sensitive issue, and that incorrect paraphrasing could cause loss of reputation to the person who made the original statement.
In the judgement, the judge dismisses Baudet’s attorney’s arguments. He goes on to say that even in the event of unlawful actions against Baudet (and the FvD), the rectification would have been null and void. The judge considers the claimed rectification text insufficient. The issue: the text proposal stated that Baudet did not say that he ‘believes that the EU has a premeditated plan to replace the white European race with African immigrants’, but this is only partly true, according to the judge. Baudet did not use the words “white”, “race” and “replace”, but all other words were actually stated by Baudet, as is correctly stated in the judgement.
Any party demanding rectification must have incurred losses. There is no need to prove losses incurred with documents in interim relief proceedings, but the claimant should demonstrate a plausible loss. Also on this count, Baudet and FvD were proven wrong. In support of the alleged loss, Baudet’s attorney referred to the newspaper articles that were submitted for the proceedings. However, the judge subtly pointed out that these articles all relate to the situation that arose after Baudet had publicly asked VPRO to publish a rectification, and after VPRO refused to comply with this request. Moreover, the judge ruled that Baudet, by seeking publicity at his own initiative, has probably ensured that the number of people who watched the original Buitenhof broadcast are by now far exceeded by people who have taken note of the publicity that arose afterwards.
The lessons of these preliminary relief proceedings are: paraphrasing and quoting are two different things, also from a legal point of view. In the second place, if you claim rectification, think carefully about the exact text. Make sure that you not only state that a loss was incurred; you also need to make that plausible to the court.