GeenStijl.nl got into another conflict over privacy and press freedom because of a link to explicit film material of a Dutch celebrity. In this article, I discuss this case.
Tempers have barely calmed after the ECJ’s ruling in the case between GS Media and Sanoma c.s. over the linking on the Geenstijl.nl website to the nude photos of Ms Britt Dekker (CJEU 8 September 2016, ECLI:EU:C:2016:644) or GS Media is already involved in another conflict with a Dutch celebrity.
Highly explicit film material
This time it concerns highly explicit film material (a pee sex film) that should have remained in the private sphere of the Dutch celebrity (hereinafter Ms P. or the claimant), but was nevertheless distributed online by GeenStijl.nl (hereinafter GS Media), among others (Amsterdam District Court 25 July 2018, ECLI:NL:RBAMS:2018:5130).
The claimant alleges unlawful conduct by GS Media and claims damages of €450,000 in the Amsterdam court, among other things.
Since this case involves the unlawful publication of visual material, the link to the 2004 and 2012 Von Hannover cases at the Court of Justice of the European Union (CJEU) is easily made.
The Von Hannover cases: the ground rules
Indeed, the Von Hannover cases laid the ground rules for answering the question of when the publication of certain (visual) material of a well-known person should be tolerated by that person and when not.
Although the facts in the Von Hannover cases differ in important respects from the GS Media case, as introduced above, these cases do provide a useful starting point in discussing the dispute between GS Media and the Dutch BN’er.
The facts, relevant considerations and conclusions of the Von Hannover cases will be briefly discussed below, after which Ms P.’s case will be explained in more detail. It will be considered whether, and if so in what way, the considerations of the Von Hannover cases play a role in assessing the lawfulness of the publication in Ms P.’s case.
Assessment of unlawful conduct
This article deals only with the assessment of wrongful conduct. Considerations relating to damages will be left unsaid.
Von Hannover v. Germany No. 1
In CJEU case 24 September 2004, 59320/00 (hereinafter Von Hannover No.1), the daughter of Prince Rainier III of Monaco, Caroline von Hannover, claimed that the posting of certain photographs of her in German tabloid newspapers was unlawful and infringed her right to privacy.
These were photographs showing Von Hannover while (among other things) riding horses, shopping, skiing or leaving her home in Paris. According to Von Hannover, she was constantly being chased by the press and the photos had been published only for the entertainment of the public, instead of helping to inform them.
In contrast, the German government argued that the interests of Von Hannover and the press had been properly balanced against each other and that the public had a right to know how a well-known person behaves in public.
Right to privacy versus freedom of expression
The disagreement between Von Hannover and Germany forced the Court to weigh up the right to privacy versus the right to freedom of expression. An assessment that the Court had already made in a large number of cases before it, and reiterated in the Von Hannover No. 1 case.
The court begins by considering that the photographs are part of Von Hannover’s private sphere and therefore the right to privacy applies.
Freedom of expression, on the other hand, includes the right to publish photographs, but in that case the rights and reputation of others are of specific interest, the court said.
The Court considers that a distinction must be made between informing about facts (including controversial ones) that contribute to public debate, for example with regard to politicians in the performance of their duties, and informing about (exclusively) the private life of an individual who does not hold official office.
Satisfying curiosity
If, the Court continued, the sole purpose of the publication of photographs and articles is to satisfy the curiosity of a specific public regarding the private life of the person concerned, there is no contribution to public debate, despite the fact that a person is a well-known figure.
In such a case, the right to freedom of expression should be interpreted more narrowly. Added to this, the manner in which the images were obtained (pictures posted in tabloid newspapers are often taken ‘in a climate of continuous harassment’ which may be perceived by the person concerned as an intrusion into his or her private life) should also be taken into account in balancing the interests.
Legitimate expectation
Finally, the court considered that everyone, including a well-known person, enjoys a “legitimate expectation” regarding the protection and respect of his or her private life.
Finally, the protection of private life must also take into account new communication technologies as a result of which specific photographs can be systematically taken and disseminated to a large part of the public.
Conclusion of the case
Taking the foregoing into account, the Court concludes that, with regard to the published photographs of Von Hannover, there was no contribution to public debate, since Von Hannover does not hold any official position and the photographs and the articles are exclusively related to details of her private life. The public has no legitimate interest in knowing where Von Hannover is and how she generally behaves in her private life, despite being known to the public.
Von Hannover v. Germany No. 2
Several years later, Von Hannover again reported to the Court (CJEU 7 February 2012, 40660/08 and 60641/08, hereinafter Von Hannover No. 2), again objecting that photographs of her (during her skiing holidays) had been published in the tabloid newspapers infringing her right to privacy.
In this case, the Court then comes up with a clear and concrete list of factors relevant for balancing the right to privacy against the right to freedom of expression, namely:
1. Contribution to public debate
What is important is that the photographs and articles contribute to public debate. What constitutes public debate depends on the circumstances of the case.
Such a contribution need not only relate to a political figure, but could also relate to an artist, for example.
2. How well known is the person involved and what is the subject of the reportage?
A distinction should be made between ‘private individuals’ and ‘persons acting in a public context’, such as politicians and other public figures. The latter cannot invoke their right to privacy in the same way as a private individual.
Also in Von Hannover No. 2, the Court reiterates that there is a difference between factual information on the one hand and the private life of the individual on the other.
In the first case, the press acts as a ‘public watchdog’ in a democracy by informing the public about ideas that are in the public interest. In the second case, by informing about the private life of an individual who does not hold an official position and where the purpose is solely to satisfy the public’s curiosity, the press does not act as a public watchdog.
Then the right to freedom of expression should be interpreted more narrowly.
3. The prior conduct of the person concerned
The behaviour of the person to whom a photo or article relates and the fact that the information in question has been published before is also a relevant factor, according to the court.
4. The content, form and impact of the publication
How the person in question is presented and where the photo or article was published is also important: Was it published in a national or local newspaper and is there extensive or limited circulation?
5. The circumstances under which the photograph was taken
As in the Von Hannover No. 1 case, the Court considers that the manner in which the photograph was taken must be taken into account. Was the photograph taken with the consent of the person portrayed or rather without his or her knowledge or perhaps in an unauthorised manner?
Consideration should also be given to the nature of the interference and the impact of the publication on the person concerned.
The Von Hannover No. 2 case specifically considered in this regard that at the time the photographs were taken, von Hannover’s father was ill. In view of this, the Bundesgerichthof held that the press was entitled to inform the public about this illness as well as the conduct of family members during this period.
Conclusion of the case
The Court considers that this interpretation is not unreasonable and accepts that the photographs, in combination with the relevant articles, contributed to the public debate to a certain extent. The Court therefore concludes that the German-national courts correctly weighed the rights of Von Hannover and the press and that there was no infringement of Von Hannover’s right to privacy in this case.
Back to GS Media
The case before the Amsterdam court introduced at the beginning of this article involves explicit film footage containing compromising images of the claimant. These images were published on various internet sites in February 2017.
GS Media published an item about the film on its website GeenStijl.nl, posting a so-called embedded hyperlink to the Twitter account of a natural person (defendant 2 in this case) who had previously posted the film online.
An embedded hyperlink should be distinguished from a (regular) hyperlink. A hyperlink is a link that redirects the user of the link to another website. However, an embedded hyperlink only refers to an expression that can be found on another website, but whose content is embedded on the website of the person posting the link.
The plaintiff claims, inter alia, a declaratory judgment that GS Media and defendant 2 (GS Media et al.) acted unlawfully towards her. She argues that the film was published by GS Media et al. without her consent. She further claims to have suffered (im)material damage and that the events have a major impact on her mental health to this day.
Balancing balances
The court considered that the present case involves a clash between the fundamental right of freedom of expression and the right to privacy and that both interests must be balanced against each other.
According to the court, however, the starting point is that the distribution ‘and emphatically also the further distribution’ of film material that clearly belongs to the intimate private sphere, is in principle always unlawful towards the person who can be seen in the material and whose consent to this distribution cannot reasonably be assumed otherwise. It is hereby stated that exceptions to this principle, even if they existed, do not exist in the present case.
No permission to disclose
The court further considered that GS Media et al had no permission from the claimant to disclose, distribute or link to the film. Nor does such (implicit) consent follow from the possible distribution of the film by the claimant itself, which it disputes, moreover.
Finally, GS Media c.s. did not (sufficiently) dispute that the claimant’s privacy interests were affected by posting the film on Twitter and linking to it. GS Media takes the position that it did not publish the film, but merely referred to its public finding place via an embedded hyperlink.
In this regard, the court considers that sharing the film through such a link has exactly the same effect and adverse consequences for the plaintiff as if the film had been published online by GS Media itself.
The technique behind hyperlinking
The court did not consider the technique behind the hyperlinking to be relevant and considered that GS Media wrongly misunderstood that it had played a facilitating and even driving role by its conduct. The fact that the material could also be found independently by the average internet user does not alter GS Media’s role, according to the court.
This is only because it has not been said that every visitor to GeenStijl.nl would also actively search for this material. And even if this were the case, it is still not given that linking to the film cannot be unlawful.
Addressing hypocrisy
GS Media further argues that it wanted to raise the issue of hypocrisy. Here, it refers to the established ‘serious’ media’s outrage at the distribution of the film, while at the same time these media were sneering about it. G
Here, S Media invoked freedom of expression, arguing that it was in its interest to be able to air its Advisory.
According to the court, GS Media failed to weigh the interests of the plaintiff. This is because the hypocrisy does not concern the claimant’s conduct and she cannot be held responsible for it. In addition, even if the film were to touch on a discussion or fuss that is in the public eye, GS Media failed to convince the court that exposing the hypocrisy (of others) justified posting the link to the film.
The fact that the claimant is a well-known person and may have displayed (sexually) free-spirited behaviour in the past does not change this. According to the court, it is still up to her whether she wants to share her intimate private life with the public.
Even if she had herself filmed and also if she may have been involved in the distribution of the film in her own chosen (and thus limited) circle. The court concluded that the balancing of interests was in favour of the claimant and that the actions of GS Media et al were unlawful.
Application of Von Hannover criteria in the present case
Because the cases of the Court of Appeal and those of the Amsterdam court differ on a number of points (the latter case concerns film footage and it involves content that clearly belongs to the private sphere), the court starts its deliberations with the premise that the distribution of this material is unlawful, which in principle already constitutes a done deal.
Nevertheless, a number of ‘Von Hannover arguments’ are introduced by the parties respectively reviewed and addressed by the court. Thus, the following arguments pass summary review:
- contribution to public debate (see point a above);
- the familiarity of the person concerned a the subject of the reportage (see point b above); and
- the circumstances under which the photograph (in this case film) was taken (see point d above).
Basically unrehtful
Summarily because, as argued, the case had in fact already been settled on the premise that distribution of the film was in principle unlawful.
However, the court’s considerations on 1) the claimant’s prior conduct (see point c above) and 2) the content, form and consequences of the publication (see point d above) nevertheless provide potentially interesting considerations for future cases involving unlawful (press) publications.
Re 1) Prior behaviour
Von Hannover No. 2 does not explain what kind of conduct may be relevant in balancing fundamental rights interests.
The case between the claimant and GS Media c.s. does make a comment in respect of the possible (culpable) past behaviour of the claimant. Namely, and as indicated above, the court considered that although the claimant is a well-known person who may have behaved in the past in public, to a greater or lesser extent (sexually) freely, this fact in itself cannot lead to a judgment other than that GS Media c.s. impermissibly crossed a line.
GS Media’s defence that the claimant had allegedly distributed the film herself via WhatsApp at an earlier stage is also brushed aside, stating that it is in any case up to the claimant herself to decide whether to allow herself to be filmed in order to then distribute this material in a circle of her own choosing.
Re 2) The content, form and impact of the publication
Regarding the manner of distribution of the film (via an embedded link), the court considered that the technique behind it was irrelevant in connection with the discussion on illegality. In doing so, the court equates embedding a film with publishing it (online), as it had the same adverse effect on the claimant.
This consideration is certainly interesting in the light of the Court’s consideration in Von Hannover No. 2 case, which states that the protection of private life must take into account new communication technologies that allow material to be disseminated to a large part of the public.
While the discussion that GS Media seeks to initiate – regarding whether posting an embedded link is the same as publishing – is undoubtedly legally interesting, the court’s consideration that, based on the Court’s consideration above, a technology-neutral approach can be assumed so that only the consequences of a given act should be considered rather than the technological means used.
In its assessment of illegality, the court does not take into account the fact that the film went viral or was seen by a large audience, which was a relevant factor in the Von Hannover No. 2 case, as evidenced by the court’s consideration that whether a newspaper has a limited circulation, for example, can make a difference to illegality.
The size of the audience is only mentioned by the court when determining the damage. By not mentioning this (earlier) when weighing up the interests, the basic premise is maintained that the publication of such a film is always unlawful in principle and thus it does not matter whether two people have seen the film or, as is the case in this case, an unmistakably large audience.
Finally… according to Good Law
With the court’s first consideration, that the (further) distribution of a film that clearly belongs to the private sphere is in principle unlawful, the tone was immediately set and the ‘result’ effectively known.
Although the Von Hannover criteria can be found in the court’s balancing of interests, they do not help GS Media et al. In fact, it seems that even if all the factors from Von Hannover cases were to turn out in the plaintiff’s favour, there is still an unlawful publication/act purely because of the content of the film.
Nevertheless, the court’s ruling shows that the review frameworks as established in the Von Hannover cases are still alive and well and (can be) relevant when assessing the unlawfulness of footage of public figures.
Look before you leap
The moral of the story is clear: Be careful before you start. As a (media) organisation and/or natural person, be very careful what material you put on the internet and share with others. Before you know it, you run into a tort action with all the negative (financial and reputation-damaging) consequences, both for the distributor of the material and the victim.
So always ask yourself: am I serving a public interest or public debate by disclosing the material, or am I just looking for sensationalism?
This article was published on 7 September 2018 in JutD 2018-0107. The version on this website contains some minor edits and new headings.
