On 3 October 2024, Pointer, the investigative journalism platform of KRO-NCRV, devoted a program to situations of abuse in a care institution. This care institution, which is now bankrupt, had seven locations across the Netherlands. It offered care mostly to the elderly, but also to former addicts and people with psychiatric problems. The former directors of the care institution argued that the episode was unlawful and claimed the deletion of the episode and a rectification.
The Court denied the claims. The Court considered, firstly, that the broadcast contributed to the public debate, since abuse at care organisations is a topic of social interest. Moreover, the directors only have a limited privacy interest in this case, because the broadcast only mentions the name of the care institution, not that of the directors.
According to the directors, KRO-NCRV had acted unlawfully by connecting the broadcast to the healthcare frauds file. However, the court held that the care institution itself was not designated as a health care fraud anywhere, nor has Pointer so suggested anywhere. The same goes for the term ‘care cowboy’, which was used by a number of interviewees, but was not used by Pointer itself in the broadcast. Since there is no clear-cut definition of this term, the Court also regarded it as a value judgment. This value judgment is not excessive, since it has sufficient factual basis consisting of personal accounts, several reports and the actual situation around the bankruptcy of the care institution. Moreover, the term is only used occasionally in the broadcast and not excessively in that sense.
The Court also mentioned, with reference to the ECHR judgment in Jersild, that the news medium has a messenger function when it reflects a third party's statement without presenting this as its own opinion. Only under special circumstances will a medium be liable for reflecting the statements of third parties. Since the Pointer broadcast consisted in large part of personal accounts of employees, residents and persons involved in the care institution, a great degree of freedom of expression applies here.
Moreover, Pointer had offered sufficient opportunity to hear both sides of the story. The Court held that by offering an interview, granting the option of responding in writing and sending an invitation to a meeting in the office, directors got sufficient room to tell their sides of the story. In addition, media themselves have editorial independence to determine how they will shape the broadcast in terms of content. The directors cannot dictate how their responses will be incorporated.
The Court also did not agree with the position that the broadcast is unlawful since it has led to serious consequences for the directors. The Court held here that media must be able to report on actions of enterprises and complaints of interested parties, even if this has consequences for the reputation of an enterprise or the persons involved therein. Foreseeable consequences of the own behaviour about which the media report cannot simply restrict the freedom of expression. Moreover, the directors had failed to demonstrate sufficiently that they had experienced serious consequences from the Pointer broadcast.
