A discussion of the judgment of the Court of Utrecht dated 3 September 2008
The Facts
In the summer of 2007 an article was published in the weekly magazine HP/De Tijd entitled ‘Rijkmans Kasteel’, (Rijkman’s Castle), an article about country houses in the Vecht region and the dominant culture in that region. Where the house of ‘newcomer’ and also former ABN Amro top executive Rijkman Groenink seems to be acceptable according to the Loenen community, in passing the article lashes out at another family and their country house. Statements such as ‘but barbarians cannot always be kept outside the gate’ and ‘the house provokes aggression’ are made about these country-house residents and their house, which has an eye-catching bright green brass roof and has been a victim of graffiti criminality before. To what extent, however, are such statements lawful?
Country home of the claimant
The Dispute
The home owner is of the view that his honor and reputation have been affected by the article. He instituted legal proceedings against publisher Audax et al. and against a country-house resident who is quoted in the article. The home owner claimed damages and a declaration from the Court that the publication concerned, in particular the qualification ‘barbarians’ and the statement that the house provokes aggression, are unlawful towards him and his family. Audax et al. put forward the defense that the article was clearly meant to be ironic. The home owner, however, was of the view that there is no question of irony since the article is mainly about Rijkman Groenink, who was under great pressure at the time of publication in connection with the take-over of ABN Amro. Audax et al. furthermore took the position that the honor and reputation of the home owner are not affected, in view of the fact that the article does not concern his family but his house. The neighbor that was quoted put forward the defense that he has given a value judgment about the house, which value judgment does not need to be substantiated by facts.
The Adjudication
For the claims of the home owner to succeed, it must first and foremost be established that his honor and reputation have been affected. Furthermore, this affecting must be unlawful. According to the Court, a weighing of interests between the right to protection of individual privacy on the one hand, and the right to freedom of speech on the other hand is necessary in order to make this establishment.
The Court agrees with Audax et al. that the qualification ‘barbarians’ must be regarded in the light of the ironic nature of the article. Moreover, the home owner has stated insufficient facts indicating that his honor and reputation have been affected. When adding all this up, the Court reached the judgment that the honor and reputation of the home owner have not been affected by the mere use of the term ‘barbarians’. The Court deemed the statement that the house provokes aggression not to be incorrect, since it is an established fact that the home concerned had already been daubed in the past. According to the Court, it is not relevant whether or not the house was already the subject of discussions at the time of the dispute. In both cases the statement is not unlawful. After all, according to the Court this concerns a value judgment that does not have to be supported by recent facts. Subsequently, the Court rejected all claims.
Conclusion
In this case freedom of speech prevails over the right to protection of individual privacy. Irony plays a principal part in this respect, because although a statement such as ‘the house provokes aggression’ is a value judgment which a court will not rapidly regard as unlawful, the question is whether the same is true for the qualification ‘barbarians’. If the article concerned would have had more serious undertones and if the home owner could have proven that as a result of this article his honor and reputation had been affected, the Court could have arrived at a completely different opinion with respect to this issue. In this case the freedom of speech wins, and, ironically, this country home owner living at the Vecht river is allowed to be labeled as a barbarian.
Country home of Rijkman Groenink
