We wrote an opinion piece in NRC newspaper on the conduct of the Amsterdam Bar Association in the action Royce de Vries brought against AD. The Amsterdam Bar Association tried to curtail the freedom of the press; as Amsterdam lawyers, this gives us cause for concern.
Our article (in Dutch) is available here in NRC and in the translation below.
Karate Kick from the Bar
The case about the sound recordings of Peter R. de Vries with Khalid Kasem has caused a turmoil. AD newspaper had got hold of these secret recordings and wanted to publish about them. The attorney Royce de Vries went to court and was granted a far-reaching publication injunction. Two weeks ago, the Court of Appeal gave short shrift to this injunction in a scathing judgment. While AD remained banned from publishing the name of one person involved only, the Court of Appeal swept everything else off the table.
Until now, the role the Amsterdam Bar played in this matter has been neglected. The Bar had joined De Vries’s action as a party because it was concerned about the safety risks for De Vries and Kasem, and about breach of the attorney-client privilege if the talks would be disclosed. Legitimate as these concerns are, they are no justification for the Bar’s karate-kick approach in this matter.
Drastic consequences
We know Royce de Vries as an ethical attorney. While his drastic claims (too drastic in our opinion) to hide as much information from publicity as he can are still understandable, there can be no such understanding for the Bar having joined him in this. The Bar successfully demanded the Court to prohibit a newspaper from even “referring” to the recordings or “mentioning their existence”. So AD could not even refer to recordings that were generally known to exist. This serves no purpose whatsoever.
Moreover, the Bar’s claim targeted not just AD, but all titles of the publisher DPG Media. To name but a few: Nu.nl, Libelle, Donald Duck, Qmusic and the Volkskrant newspaper, which had nothing to do with the matter at all. With this claim the Bar ignores the editorial independence of DPG’s titles, which include some of the largest and most respected newspapers of the Netherlands. When this claim was actually awarded by the Court in preliminary relief proceedings, the consequences for DPG as a whole were enormous. Moreover, the Bar and De Vries managed to get secrecy imposed, even on the judgment itself. Since breaching this injunction is even a punishable offence, all DPG titles had to practise self-censorship – a bizarre situation. Worse still, the Bar claimed (and was awarded) a penalty of 100,000 Euro per breach, up to one million maximum, besides the 100,000 that De Vries claimed. Each DPG title that would breach the drastic injunction would therefore forfeit 200,000 Euro per breach.
And things did not stop here; the Bar had also brought a claim of its own, for the surrender of the source materials: the actual tapes. Case law of the European Court of Human Rights is crystal clear on this: these tapes fall under source protection. But even source protection was brushed aside by the Bar, since “the Dean is authorized to require this surrender ‘from anyone’”; the Bar argued that this is very well possible without revealing the source. The Bar eventually withdrew this claim.
Over-simplification
According to the Bar, “freedom of the press finds its limit where the attorney-client privilege begins”. Naturally, the confidentiality of communication between attorneys and clients is extremely important in a state under the rule of law. But it is not absolute, as no fundamental right is absolute. This is basic constitutional law; where fundamental rights collide, they will be weighed against each other. The Bar’s argument is an over-simplification. This is clearly shown by the judgment of the Court of Appeal, which attached more weight to the freedom of the press and the right of the public to be informed.
It is odd to see such disregard displayed by the Amsterdam Bar for the foundations of the rule of law. The Bar could have expressed its concerns differently, for example by issuing a statement that De Vries could have used in his lawsuit. We consider this fierce attack on press freedom without a valid reason to be inappropriate for the supervisor of the Amsterdam legal profession, which has, after all, the protection of citizens’ rights and freedoms as its key objective.
We hope we have not heard the last about this, and that the Bar will examine its conduct critically and publicly in order to prevent similar missteps in the future.
Jens van den Brink and Lotte Oranje are media attorneys who regularly represent media in lawsuits, including DPG Media and Mediahuis (the publisher of NRC). They had no involvement in the AD case.
