In summary proceedings about a podcast of newspaper NRC, an extra hearing was scheduled at NRC’s request, in which solely the urgency of the case was assessed. The Court in summary proceedings found that there required urgent interest was absent and dismissed the claims without a substantive hearing. NRC had made this request as a lot of time had passed in this case since the date of publication, which was why there was no urgency according to NRC. NRC also pointed to the fact, that it was a large case with an extensive summons about an eight-episode podcast. Therefore, for ‘the sake of judicial efficiency’ and to save costs, NRC requested the Court to judge the urgency first, before going into the contents of the case. This request was successful.
We are unaware of any Dutch cases in which such a separate hearing took place, which only deals with the question of urgent interest, before touching upon the substance of the case. However, the presiding judge in this case mentioned the point that other courts sometimes do this too, so apparently this is not a novelty. Although urgency is assumed relatively easily in summary proceedings, the option of a pre-trial hearing on the subject can be very useful in cases where the urgency is really doubtful, in order to save unnecessary costs and efforts.
The details of the case are set out below.
NRC podcast on Kandinsky restitution
At the end of 2023, NRC published the eight-episode podcast ‘Once there was a painting here’. This podcast reconstructs the restitution of Kandinsky's painting ‘Bild mit Häusern’. This painting hang in the Stedelijk Museum in Amsterdam, but was eventually returned by the City of Amsterdam to the heirs of the (Jewish) previous owner of the painting. They argued that the painting had been sold under duress from the Nazis.
During their research, the authors of the podcast had been in touch with Mondex, a Canadian company that helped the heirs get the painting back. After the podcast had already been posted online, Mondex complained (on 27 June 2024) of its alleged unlawfulness. NRC responded by making two corrections. After two new demands in October 2024 and February 2025 Mondex brought summary proceedings in April 2025, in which it claimed that the entire podcast be taken offline.
NRC then requested that the case be dealt with without a hearing on substance, in order to have the urgent interest judged first and only. As said, the Court in summary proceedings went along with this and held at the hearing that the urgent interest of the claimants was indeed absent. The Court considered in this judgment that the podcast did not have such a big audience anymore at that time and that the series was no longer advertised. Another relevant point is that it took the claimants a long time to start the summary proceedings, although it was clear from NRC’s first reaction that it would not take the podcast offline. It would have made more sense for the claimants to take action back then and start summary proceedings:
"It is possible that sitting idlye for too long by a claimant does not lead to a loss of urgent interest, but there has to be urgent, serious damage in that case, which makes it obviously impossible to await proceedings on the merits. This was insufficiently substantiated by Mondex and [claimant 2]. They have not explained sufficiently that they are suffering serious damage, let alone what specific statements have led to this damage, which requires relief at this moment. Merely arguing that there is damage to their reputation is insufficient.
Furthermore, the Court in summary proceedings held that many factual accusations were made in this case that must be investigated thoroughly. In combination with the absence of urgency, this makes the case more appropriate for proceedings on the merits.
Finally, the Court in summary proceedings also takes into account the interest of NRC in having sufficient time to prepare:
"Finally, in light of ‘equality of arms’ it has been some time ago for NRC that it performed the investigation for the podcast and now (after [claimants] took their time to perform their investigation into the facts) it will take time for NRC to defend itself properly on substance after all. A short preparation time is inherent in urgent proceedings, but because there is no urgency on the part of [claimants], there is no justification to force NRC to put forward an elaborate defence at short notice.
The claims of Mondex and the incorporator were therefore denied. This judgment shows that in some cases, also for publications that are still online, an urgent interest may be absent. Moreover, this judgment is a good example of the court weighing efficiency in the proceedings, by first judging a procedural defence before substantively hearing the case.
In this case, NRC was assisted by Lotte Oranje and Simon Niens.
