Alberto Stegeman shows in his program ‘Undercover in Nederland’ the Dutch all kinds of misdemeanors in the Netherlands. He frequently uses a hidden camera. It has often occurred that Stegeman’s ‘victim’ wanted broadcasting of such images to be banned. Recently, the topic of the program was the phenomenon ‘acquisitional fraud’. Therefore, Stegeman secretly filmed Mr X. X went to a company and wanted to collect cash for an advertisement in the “National Industry Guide”. Stegeman designates that company as fraudulent. Mr X presented himself as an employee of a collection agency. X started proceedings to have the broadcast of this material banned. He therefore relied, inter alia, on his portrait rights.

The court makes a somewhat remarkable judgment about portrait rights. Stegeman and his production company expressed commitment to ‘wipe’ the face of X (thus making it unrecognizable). Because the face of X will not be seen, it is not a portrait in the sense of the law, according to the court.
This consideration seems inconsistent with the case law on this subject. In the Breekijzer-judgment, also on guerilla-journalism, the Supreme Court said: “even though the whole or part of the face of the person depicted has been made unrecognizable, there is no need to dismiss that there is a portrait in the sense of art. 21 Dutch Copyright Act, because also from the other things the picture shows, the identity of that person can be recognized.” In other words, it’s all about the recognition. Recognition for others is sufficient. This was also decided by the Supreme Court in another judgment about a picture of a woman on a naturist guide.

The sister of X had told some acquaintances that X would be part of ‘Undercover in Nederland’. The judge considered that acquaintances of X, now that they note that X will be seen in the show, would recognize X. Is it not feasible that these acquantances would recognize X anyway, taken into account “what the picture shows otherwise? In such case, it would indeed be a portrait.

For the outcome of the case it probably would not have mattered if the judge had regarged the ‘wiped’ X as a portrait. If only a few acquaintances had recognized X, he has a limited privacy interest. This limited interest probably would not have made it against the freedom of expression of Stegeman, in case these interests would have been compared.
Nevertheless, Stegeman may broadcast the secretly shot images of X in order to show the fraud.

Daniël Haije en Daan van Eek

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