At the very end of 2024, the Court of Midden-Nederland ruled that NOS did not act unlawfully in its reporting about a temp agency and the bad working conditions of Polish migrant workers. The freedom of the press of a news medium must be interpreted broadly, especially where third party statements are concerned that have been obtained and published with due observance of journalistic care.
The article concerned
On 15 June 2022, NOS published an article with the headline “Polish Euro MP Warns Poles against Working in the Netherlands.” At the heart of this article was the story of Polish couple Anna and Wojciech, who had a negative experience with a temp agency. Once they were in the Netherlands, their wages turned out lower than promised, their housing was bad, and Anna’s severe nut allergy had not been taken into account. The Euro MP Robert Biedron, whom the Polish couple had informed of their situation, expressed his concerns about the well-being of Polish migrant workers (“It is a kind of modern slavery“) and expressed his intention to launch a campaign in Poland in order to inform citizens of the risks of working in countries like the Netherlands.
The NOS article reported on these problems. Before the article was published, NOS had approached the temp agency to hear their side of the story. They were in elaborate contact. After the article was published, the temp agency raised new points and NOS adjusted the article twice. As a first adjustment, a reference was included to the web page of the temp agency, where a statement had been published. The second adjustment followed after the company had presented the article to the Netherlands Press Council (“RvdJ”). On 15 December 2022, the article was adjusted once again, with reference to the essence of the RvdJ’s ruling and a reference to the location of the full ruling. The RvdJ held that NOS had acted without due care by focusing the report on the temp agency, and had shed insufficient light on the role of an external recruiter who had been engaged in Poland.
Temp agency’s claim
Despite the adjustments to the article, the temp agency believed that NOS had acted unlawfully vis-à-vis them with the publication of 15 June 2022 and the subsequent versions. The publication allegedly damaged the honour and reputation of the temp agency with the words ‘false pretences’ and ‘modern slavery’, and therefore rashly exposed the agency to accusations. The temp agency challenged three particular statements: (a) the statements of the Polish couple that they had been brought to the Netherlands under false pretences, (b) the statement by Euro MP Biedron that there is “a kind of modern slavery”, and (c) the statement that the temp agency is not a member of a sectoral organisation and is therefore not checked for good employment practices.
Opinion of the Court
The Court’s judgment confirms the fundamental role of the freedom of expression and contains considerations worth reading about, among other things, the messenger function of news media. The Court found that the published article did not contain any unlawful statements. In a case like this, where migrant workers found themselves in an awkward position and are brave enough to speak up, great room and weight is attached – rightfully – to the freedom of expression of a news medium to report on the problems. The fact that a temp agency is referred to by name contributes to the controllability of the reports by NOS, the Court stated (in ground for the judgment 4.32-4.33). The Court also disagreed with the RvdJ, which had previously held that the role of external recruiters had not sufficiently come to light. The Court stated:
“If [temp agency] outsources the recruitment of staff to auxiliary persons, such as a recruiter in Poland, recruitment takes place on its instructions. [Temp agency] has an interest in the recruitment taking place properly. She is also responsible for this.” (ground for the decision 4.31)
Journalistic care has been met, according to the Court, in light of the prior research into the statements and the room NOS offered the temp agency to react. The Court again draw a clear line regarding the limits of the law:
“Offering the possibility to hear both sides of a story is generally relevant when the lawfulness and accuracy of a substantive publication is assessed, but it is not an absolute right, let alone that integrally presenting and matching a full news item is.” (ground for the decision 4.20)
The Court rejected all claims of the temp agency and ordered the agency to pay the costs of the proceedings.
NOS was represented in this action by Jens van den Brink and Lotte Oranje.
This article was previously published on www.mediareport.nl.
