In 2012 a woman from Amsterdam called D. was convicted in summary proceedings for Cyberstalking, Identity Theft, Harassment, Threats and Defamation. She had been stalking the American film maker Christopher Johnson IV and the actress Mariana Tosca, mainly through the internet (we wrote about this case here, in Dutch). As far as we are aware, this was the first ruling in the Netherlands about cross-border stalking through the Internet. A special aspect of the case was that it was heard according to American law and that the Dutch court awarded punitive damages.
D. brought an appeal against the judgment. In its ruling, the Amsterdam Court of Appeal rejected the objections of Dilpizoglou and upheld the judgment in first instance for the most part, as will be detailed below.
Accusations against Johnson and Tosca completely unfounded and defamatory
As set out in our previous article, D. had posted a large number of negative articles on Johnson and Tosca in various places on the Internet, accusing them of various wrongdoings and crimes. Especially Tosca was given a hard time: she was called a ‘psychopath’, a ‘fraudster’ and a ‘liar’.
D. had argued that freedom of speech gave her the right to express herself in this way about Johnson en Tosca. However, the court in summary proceedings concluded that D. merely wanted to hurt Johnson en Tosca with her comments. Given the way of expression and the contents of the articles (and other publications), the court in summary proceedings did not consider it likely that (as D. argued) she had written the messages to ‘warn’ the public. The court in summary proceedings found that D. had no factual ground for her accusations against Johnson and Tosca. The court concluded D. had acted unlawfully vis-à-vis Johnson and Tosca, and found her guilty of defamation (according to American law).
The Court of Appeal followed these considerations of the court in summary proceedings and emphasized that also on appeal, not a shred of evidence had been produced to support D.’s allegations against Johnson and Tosca.
D. guilty of (cyber)stalking
Besides her negative publications, D. had also harassed Johnson en Tosca in several other ways. For example, she had opened a Twitter account in Tosca’s name and placed several tweets, had sent messages to business relations of Johnson and Tosca and had sent negative and/or threatening messages to Johnson and Tosca via e-mail and Facebook. Also after Johnson and Tosca had repeatedly requested her to stop, and a restraining order had been issued in the US, D. went on with her “deluge of publications”, as the Court calls it. On the basis of these facts the court had ruled that D. was guilty of stalking.
Also on appeal D. invoked her right to freedom of speech on this point. However, the Court of Appeal held (following the court in preliminary relief proceedings) that American law offers no protection to a pattern of conduct that can be designated as harassment. In other words; a person who systematically harasses Americans through the Internet is not protected under American freedom of speech.
Advance on damages
The court in summary proceedings had awarded approximately € 71,000,- as an advance on damages. This amount consisted of advances on material damages, immaterial damages and so-called punitive damages (damages by way of punishment, since the case had to be judged according to American law). The Court of Appeal moderated the material damages, but upheld the punitive damages. As far as we know this is unique in Dutch case law. The Court considered the following in this respect:
“[is is not given] that American public order (also) opposes that such damages are awarded by the Dutch court in summary proceedings conducted in the Netherlands. (…)
In the present summary proceedings, as well as on appeal, it has been established that D. has acted unlawfully. In the absence of any facts or circumstances put forward by her that would require a different opinion (under American law), this implies that D. is liable for damages incurred by Johnson et al. as a result of these unlawful acts. As things stand, it must be concluded that (…) unlawfulness and liability have been established in civil proceedings. This is not altered by the fact that these proceedings are Dutch summary proceedings.”
The advance on immaterial damages was also upheld. The Court of Appeal found D. liable to pay an advance on damages suffered by Johnson and Tosca amounting to € 12,500,- per person (so € 25,000,- in total).