Surrender of TV shows’ hidden camera footage or protection on account of freedom of the press?

The Dutch television show Radar used a hidden camera to scrutinise a telecom provider. To prove that the Dutch broadcaster AVROTROS had acted unlawfully, the telecom company demanded the surrender of all the audio-visual material. Do these images come under the protection of Article 10 of the ECHR, which, among other things, protects freedom of the press? Is a violation of this fundamental right possible and justified? Media Law Lawyer Thomas van Vugt discusses the Supreme Court’s ruling.

Unlawful act and demand for surrender of video footage

The AVROTROS TV show Radar (Tros) had broadcast an item about the telecom provider Pretium in which Pretium’s telephone canvassing methods were critically discussed. Tros also broadcast images of a training course at one of Pretium’s call centres. These images were made with a hidden camera. Pretium argued that Tros had acted unlawfully by accusing them of improper practices. Pretium demanded the surrender of all audio-visual material to be able to prove this.

Violation of freedom of the press?

Article 10 of the ECHR protects, among other things, the freedom of the press. The European Court of Justice has determined that journalistic material recorded with a hidden camera is also covered by the protection of Article 10 of the ECHR. The fact is that surrender of the material could restrict the freedom of the press. Journalists could become reluctant to report on social abuses if the surrender of their material could be demanded. Demanding the surrender of the visual material is therefore a violation of this fundamental right.

Is a violation of the fundamental right justified?

A violation of a fundamental right is only possible if this is regulated by law. Under Article 843a of the Dutch Code of Civil Procedure, Pretium can demand the surrender of the visual material. It appears from the fourth paragraph of this article that Tros may decline to surrender the images if there are ‘important reasons’ for this or if Pretium can also achieve its (legal) purpose without those images. For example, Pretium could have heard witnesses or demanded the surrender of only part of the visual material to provide evidence of Tros’ unlawful conduct.

Supreme Court rejects demand

Pretium argued that surrender of the images may also be demanded if not all other possibilities for providing evidence have been exhausted. The Supreme Court stated that the general interest of the freedom of the press is paramount. The subsidiarity and proportionality of Article 10 of the ECHR (section 2) implies that in view of the circumstances of the case, less intrusive means should have been used. For example, the hearing of witnesses instead of the surrender of all the visual material.

Lawyer advises on protection by fundamental rights

Fundamental rights are so important that they can only be violated in certain circumstances and cases. Moreover, even if the violation is provided for by law (as in this case), it must also be considered whether other and/or less drastic means are available. The protection afforded by fundamental rights cannot be simply ignored. AMS Advocaten will be happy to advise you when you have to deal with fundamental rights and the protection that these afford you or others.

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