The Court in Tros v. Pretium: Article 10 ECHR Applies to Order to Surrender Video Footage
Court of The Hague in Preliminary Relief Proceedings 25
February 2011, KG ZA 11-137, (Tros v. Pretium)
Telecom company Pretium has been in conflict with the
broadcaster Tros already for quite some time. We already reported
about this conflict
here (in Dutch) (and
here (in Dutch), about the fight
between Pretium and broadcaster VARA) on our MediaReport
website. The reason for the conflict is a broadcast of the
consumer program Tros Radar from 2008, in which Tros Radar paid
elaborate attention to complaints about Pretium's telephone
sales. In this broadcast Tros Radar showed images recorded with
a hidden camera in a call centre that Pretium had engaged. In
one of the many proceedings that followed, Pretium requested the
Court to order Tros to surrender the audio and visual material.
The Court
awarded (in Dutch) this request and
ordered Tros to surrender the material recorded surreptitiously
to Pretium within 24 hours, on pain of a penalty of EUR 10,000
for each day that Tros would not comply with this order.
Furthermore, the judgment was declared to be ‘provisionally
enforceable’, which means that Tros had to surrender the pictures
within 24 hours, even if Tros would lodge an appeal. In other
words: the lodging of an appeal did not suspend the obligation to
comply with the judgment. The basis for this decision of the Court
was that the provision of a copy of the recordings did not
constitute a violation of Article 10 of the ECHR (the freedom of
expression/freedom of the press), on the basis of the consideration
that the public position of journalism is not liable to suffer when
the journalist cannot invoke the importance of the protection of a
source, which source stipulated confidentiality when providing the
information to the journalist.
Tros did not wish to comply with the order to surrender the
recordings and instituted enforcement preliminary relief
proceedings, in which it demanded that Pretium was ordered to cease
(suspend) its claim for surrender of the camera images, on pain of
a penalty. The legal starting point here was that the execution of
a judgment that has been declared provisionally enforceable could
only be prohibited if Pretium had no reasonable interest in the
execution (for example, if the judgment was based on a legal
error).
Recently, the Court in preliminary relief proceeding rendered a
judgment (in Dutch) in this case.
Diametrically opposed to the Court that had imposed the order to
surrender, this Court gave the appropriate opinion that Article
10 of the ECHR indeed applied to such an order. This follows,
inter alia, from
the Sanoma judgment (in
Dutch) of the European Court of Human Rights. This
case concerned journalistic source material that the Tros
reporter had collected himself and that was not known to Pretium
yet. According to the Court in preliminary relief proceedings,
the order to surrender therefore constitutes a restriction of
the freedom of expression. Next, it must be assessed whether
this restriction is permitted; this requires that the
restriction is prescribed by law and necessary in a democratic
society for the protection of the interests mentioned in
paragraph 2 of Article 10 of the ECHR. Since the Court that gave
the order did not carry out this test, the Court in preliminary
relief proceedings held that there has been such an omission
that this constitutes a ‘legal error’. This leads to the
conclusion, in the Court's view, that the claim to cease the
execution of the judgment can be awarded. In short: as long as a
higher court has not permitted it, Pretium cannot demand the
surrender of the images. Incidentally, I consider it improbable
that a court in appeal proceedings will give Pretium this
permission.
This judgment makes clear once again that the journalistic right
of non-disclosure is a cornerstone of the freedom of the press,
which is protected by Article 10 of the ECHR. Another interesting
and, in my opinion, also correct consideration of the Court in
preliminary relief proceedings is that if Tros can no longer decide
for itself how and when it will disclose the information concerned,
this may have a chilling effect – in other words: a negative impact
– on the journalistic freedom of expression. Fortunately, with this
judgment the Court in preliminary relief proceedings has put a stop
to this chilling effect.