In a judgment of 31 March 2010 the Court of Amsterdam ruled that de Volkskrant need not delete articles about Eric Luzac, the founder of the Luzac schools, from the Internet or from its archive. In the period 2002-2005 de Volkskrant had published a number of critical articles about malpractices in companies in which Luzac was involved. Through the companies, nurses from the Philippines were recruited for work in the Netherlands.
Luzac had initiated proceedings on the merits against de Volkskrant because in his view the publications were still causing him problems. Luzac had not argued that the articles themselves were unlawful, but that his honor and reputation were disproportionally affected because the articles are still available in the archive of de Volkskrant and on the Internet and pop up in Google when his name is searched for. Luzac claimed that he was not able to get funding for a new company because in the articles he is depicted as an unreliable person. According to Luzac, de Volkskrant had been sufficiently able to make use of its right to freedom of expression in the years during which the articles had been online.
The Court emphasized that the media’s primary role is not only that of being public watchdogs: “(…) an important secondary role is making news available in archives. An obligation to remove the articles, which in themselves are lawful, solely because of a negative undertone, is not very consistent therewith. In that case the archives would not be a reliable witness of the past anymore.” Luzac’s interest had to give way to de Volkskrant’s interest and the social interest in reliable news archives.
These are the first proceedings on the merits in which a decision is given on the question of whether news reports must be removed from an on-line archive because they are harmful to a person mentioned in those reports. At the same time, Luzac lost similar proceedings on the merits against broadcasting corporation VPRO about the radio program Argos, which broadcasts can still be consulted via www.deochtenden.nl.
Recently, a judgment in preliminary relief proceedings was already rendered in which the integrity of an on-line archive prevailed over the honor and reputation of a person who was put in a bad light. This case concerned an article on the website of the newspaper Eindhovens Dagblad that was harmful to a former employee of the Eindhoven University of Technology. The judge in preliminary relief proceedings then also decided that the interest of the former employee had to give way to the interests of the Eindhovens Dagblad and the interest of a complete news archive. Media Report reported on this case here (in Dutch). Thus far, Dutch case law thus seems to point to a consistent rule, which gives priority to the completeness and integrity of news archives.
See reports about the Luzac/de Volkskrant judgment in de Volkskrant of 1 April 2010 here (in Dutch). De Volkskrant was represented by Jens van den Brink of Kennedy Van der Laan.