The Supreme Court in Tros v. Pretium: Showing Hidden-Camera Images in the Event of an Abuse is not Unlawful
Recently, the Supreme Court rendered a
judgment (in Dutch) in the
much-discussed case between Tros and telecom company Pretium. The
heart of the dispute was that in its consumer program Radar,
the Tros broadcasting company had paid attention in a critical
manner to the way in which Pretium promotes its products by using
call centers. In the broadcast of Radar, recordings of a
sales training in such a call center were shown, which were made by
an employee of Tros with a hidden camera. This employee had posed
as an applicant. Pretium was of the view that Tros had acted
unlawfully by doing so. See for a further discussion of the facts
here (in Dutch)and
here (in Dutch).
The Court of Appeal of The Hague
ruled (in Dutch) in 2009 that the
broadcast was not unlawful towards Pretium. According to the Court
of Appeal, the basis of this ruling was, inter alia, that
the press must be able to play its ‘vital role’ of ‘public
watchdog’, and that it must be possible for abuse by Pretium when
selling subscriptions by telephone to be exposed. Pretium brought
an appeal to the Supreme Court against this judgment of the Court
of Appeal.
Without using many words, the Supreme Court has ruled that the
Court of Appeal had rendered a correct judgment. More specifically,
the Supreme Court has stated with regard to the surreptitious
making of video recordings that "(…) when answering the
question of whether the use by a journalist of a hidden camera
within the scope of his investigation into a social abuse and the
publication of the visual material obtained with this camera is
unlawful, it comes down to a weighing of the interests and
circumstances involved". The fact that according to
journalistic standards the use of hidden-camera equipment is not
admissible (which fact was invoked by Pretium in the appeal in
cassation) is, in the view of the Supreme Court, indeed a
circumstance that may play a role in this weighing of interests,
but is not decisive. This applies in this matter too, since in the
end, Pretium's appeal to the Supreme Court was rejected.
It is therefore important for the media to know that
journalistic standards and codes of conduct, such as the Guideline
of the Netherlands Press Council, may be taken into consideration
in an adjudication of whether a statement is lawful or unlawful,
but are not decisive. Therefore, these rules or codes cannot be
followed blindly. For instance, recordings which have been made
with a hidden camera (which, according to journalistic standards,
is not admissible), may be deemed lawful still in the event of an
abuse that must be exposed, as this judgment shows.
Incidentally, the above is in line with another case
(Stoelinga/Baljé) which we have
discussed (in Dutch) on our
MediaReport website. In that case it was also ruled that the
showing of surreptitiously made recordings of an abuse ─ by the
person who did this in the general interest ─ was not
unlawful.