Press Freedom and Privacy
Published Stories and Right of Reply
The stories published have been sent to the involved parties for comment. Any comments are included, along with the name and date. All parties involved have also been contacted by phone for comment and invited for an interview.
Press Freedom and Privacy
As a journalist, you must be able to expose wrongdoing and express yourself publicly in a critical, informative, opinionated, or cautionary manner. At the same time, individuals have a right not to be exposed to unfounded accusations through press publications.
These two fundamental rights, freedom of the press and privacy, are weighed against each other. A balancing of interests is always required, taking all circumstances of the case into account.
As a journalist, you rely on the fundamental right to freedom of expression, enshrined in Article 10 of the European Convention on Human Rights (ECHR) and Article 7 of the Dutch Constitution. In principle, prior censorship is not allowed. However, a publication may be deemed unlawful if it infringes on someone else’s rights, such as the right to privacy and protection of honor and reputation (Article 8 ECHR).
Both the European Court of Human Rights and Dutch courts view freedom of expression as a cornerstone of a democratic society, where the press plays a vital role as a public watchdog. This means the news does not always have to be positive. The courts recognize that journalistic freedom extends beyond restrained and objective reporting of facts. Therefore, press expressions may be shocking, disturbing, or offensive.
The exercise of freedom of expression may be subject to certain formalities, conditions, restrictions, or penalties. But only if these are provided by law and are necessary in a democratic society, for example to protect the reputation or rights of others. In this so-called “necessity test,” the courts place great importance on whether the publication contributes to the public debate. If it does, there is little room for restricting freedom of expression. However, there is a journalistic duty to act in good faith, based on well-researched factual material, and to provide reliable and accurate reporting in line with journalistic ethics.
Public Debate
When assessing the legality of a publication, it is also important to determine whether it contributes to the public debate on a socially relevant issue. Case law shows that publications on matters of public interest deserve strong protection. These include exposing serious wrongdoing and reporting on socially important or current topics. Simply put: news.
Publications about a politician’s performance always belong in the public debate, but reports about their private life almost never do—unless it directly affects their work as a politician.
The Public Watchdog
The media play a necessary role in a democratic society: they are the public watchdog, responsible for holding governments and businesses accountable to the public.
The public has the right to be informed about matters of general interest, and the media have the duty to provide that information. This includes anything of social relevance, such as news about politicians, the government, businesses, organizations, and social injustices.
The press can only perform this role effectively when freedom of expression is protected, when journalists can invoke source protection, and when they can work independently.
When assessing the legality of a publication, it is again relevant to determine whether it contributes to public debate on a socially relevant issue.
Chilling Effect
Restrictions on freedom of expression or freedom of information gathering have a so-called “chilling effect” on the media’s role as a public watchdog. That’s why such restrictions are imposed with great restraint. Every limitation on the distribution of information reduces the effectiveness of the press in fulfilling its watchdog role. Press freedom is primarily in the interest of the public, ensuring that people are well informed.
Disproportionate Harm Due to Identifiability
“Disproportionate harm due to identifiability” only arises if a person becomes more identifiable through a publication than they already were. Since the internet allows widespread dissemination of information by non-journalists, who often don’t feel bound by discretion, anonymization often no longer serves a purpose. The person in question may have already gained public notoriety, which according to the Journalism Council, may justify mentioning the name of a suspect or convicted individual.
Journalists are also free to include names of those involved in reports on non-criminal court proceedings. Additionally, journalists are free to choose what news they report.
Duty to Investigate
Journalists are expected to conduct thorough fact-checking. However, they are not required to provide conclusive proof. Unlike criminal law, facts do not need to be established beyond doubt. What a journalist publishes must be made plausible. This is assessed based on the facts available at the time of publication. If new information surfaces later, it does not automatically render the original publication unlawful.
The seriousness of the accusation also plays a role. The more serious the allegation, the more thorough the journalistic investigation must be. However, in cases of urgent social issues where publication is time-sensitive, there is less room for deep, independent investigation. Courts have acknowledged that this is generally not required under such circumstances.
Freedom of Information Gathering
Barriers to access that prevent or restrict information limit journalists in their work. This undermines their ability to act as a public watchdog. If journalists cannot provide accurate and reliable information, press freedom is compromised. This is especially serious in the case of social injustices, where the public must be properly informed. And it’s precisely in such cases where there is often a tendency to withhold or obscure information from journalists.
Journalists may encounter obstacles during their investigations, for instance, being denied access to private property.
Censorship
Censorship is the prior prohibition of publishing information or opinions. However, a court will almost never prohibit a journalistic expression in advance. In general, a publication will only be prohibited after it has been published, and only if it is deemed unlawful.
In the Netherlands, freedom of expression is guaranteed under Article 7 of the Constitution, which states that no prior permission is needed to express thoughts or feelings through the press, subject to everyone’s responsibility under the law. This also applies to radio, television, and other media.