Journalists Van Cann and Jansen — no personal liability for the news

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District Court of the Northern Netherlands

Location Leeuwarden, case number: C/17/190788 / HA ZA 2023-172

Docket hearing of 21 February 2024

STATEMENT OF DEFENCE ON BEHALF OF VAN CANN AND JANSEN

In the matter of:

1. Ms Giselle Jacqueline Marie-Thérèse van Cann, defendant sub 12, hereinafter referred to as: "Van Cann",

2. Mr Paul Edwin Jansen, defendant sub 13, hereinafter referred to as: "Jansen",

lawyers handling the case: Mr L. Broers and Mr R.H.W. Lamme

3. Mr Everhardus Ite Hofstra, defendant sub 1,

4. Mr Jaap Tamino Van Dissel, defendant sub 2,

5. Ms Maria Petronella Gerarda Koopmans, defendant sub 3,

6. Mr Mark Rutte, defendant sub 4,

7. Ms Sigrid Agnes Maria Kaag, defendant sub 5,

8. Mr Hugo Mattheüs de Jonge, defendant sub 6,

9. Mr Ernst Johan Kuipers, defendant sub 7,

10. Mr Diederik Antonius Maria Paulus Johannes Gommers, defendant sub 8,

11. Mr Wopke Bastiaan Hoekstra, defendant sub 9,

12. Ms Cornelia van Nieuwenhuizen, defendant sub 10,

13. Mr Feike Sijbesma, defendant sub 14,

14. THE STATE OF THE NETHERLANDS, defendant sub 17,

defendants 1-10, 14 and 17 hereinafter jointly referred to in the singular as: "the State",

lawyers handling the case: Mr R.W. Veldhuis and Ms M.E.A. Möhring

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15. Ms Agnes Catharina van der Voort-Kant, defendant sub 16, hereinafter referred to as: "Kant",

lawyer handling the case: Mr A.H. Ekker

16. Mr Albert Bourla, defendant sub 11, hereinafter referred to as: "Bourla",

lawyer handling the case: Mr D. Roessingh

17. Mr William Henry Bill Gates III, defendant sub 15, hereinafter referred to as: "Gates",

lawyer handling the case: Mr W.H. Heemskerk

versus:

1. Mr [claimant 1], claimant sub 1,

2. Ms [claimant 2], claimant sub 2,

3. Mr [claimant 3], claimant sub 3,

4. Ms [claimant 4], claimant sub 4,

5. Mr [claimant 5], claimant sub 5,

6. Mr [claimant 7], claimant sub 7,

claimants 1-6 hereinafter jointly referred to as: "[claimant 1] et al.",

lawyers handling the case: Mr P.W.J. Stassen and Mr A.G.W. van Kessel

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A. INTRODUCTION

1. These proceedings concern the Covid-19 pandemic. The pandemic was an eventful and, for many, an uncertain and frightening period. Governments worldwide had to take measures to contain the pandemic. These included measures that restricted citizens' freedoms and that did not have the support of the whole of society, including [claimant 1] et al.

2. It is apparent from the summons that [claimant 1] et al. are convinced that the Covid-19 pandemic never took place. [claimant 1] et al. allege that they were misled and 'seduced' by the defendants into having Covid-19 vaccinations. [claimant 1] et al. allege that they have sustained personal injury as a result and hold the defendants liable for it.

3. More specifically, Van Cann and Jansen are accused of having, as the editors-in-chief of 'the mass media', aimed with 'their' reporting on the Covid-19 pandemic at causing maximum fear among the population. In addition, they are alleged to have deliberately withheld from the public reports concerning the alleged lack of safety of the Covid-19 vaccines. [claimant 1] et al. even go so far as to accuse Van Cann and Jansen personally of complicity in 'genocide' against the Dutch population.[1] [claimant 1] et al. do not substantiate these far-reaching accusations, but base their assertions on the exclamations of controversial politicians[2] and on disinformation.[3]

4. It is apparent from the summons that the claims of [claimant 1] et al. are in fact directed against the employers of Van Cann and Jansen: the NOS and De Telegraaf. Nevertheless, [claimant 1] et al. have chosen to summon Van Cann and Jansen in person. This choice is based on a strategy devised by Stichting Recht Oprecht, of which [claimant 1] et al. (and their lawyers) form part.[4]

5. Van Cann and Jansen ask your Court to dismiss the claims of [claimant 1] et al. in their entirety and thereby also to ensure that they are not exposed to this form of personal intimidation. Van Cann and Jansen will below take the primary position that there is no legal basis for their personal liability and will, in the alternative, defend themselves against the claims that are in fact directed against their employers. For the sake of good order, it is noted that the NOS and De Telegraaf are not parties to this dispute. Solely for the sake of readability, reference will be made to the NOS and De Telegraaf where the defence against the assertions of [claimant 1] et al. about the reporting of the NOS and De Telegraaf is concerned.

[fn 1] Summons, paragraph 280.

[fn 2] The Romanian Member of the European Parliament Cristian Terhes of the Eurosceptic Conservatives party (see, among others: https://www.brusselstimes.com/197893/six-meps-punished-for-entering-parliament-buildings-without-covid-certificate and https://www.ad.nl/buitenland/europarlement-eist-coronapas-van-leden-diep-triest~a6a6d6ac/) and Alternative für Deutschland leader Alice Weidel (see: https://www.bloomberg.com/news/features/2023-12-09/will-afd-s-alice-weidel-be-germany-s-first-far-right-leader-since-nazi-era and https://www.theguardian.com/world/2024/jan/10/politicians-from-germany-afd-met-extremist-group-to-discuss-deportation-masterplan).

[fn 3] https://nos.nl/nieuwsuur/collectie/13903/artikel/2438923-bronnen-bij-ophef-over-de-pfizer-papers.

[fn 4] https://rechtoprecht.online/rechtszaak: 'Each of the defendants is being held liable by the claimants jointly and severally and in a private capacity on account of the participation in this project alleged by the claimants. The claimants allege that the defendants, both in person and as a group, intentionally acted unlawfully, as a result of which the claimants are suffering considerable damage. The foundation is of the opinion that conducting these civil proceedings serves a major public interest'.

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B. FACTUAL FRAMEWORK

B.i. Covid-19 and the vaccination policy

6. Van Cann and Jansen have taken note of the statement of defence on behalf of the State dated 10 January 2024 ("the State's SoD"). That statement sets out the principles of government policy with regard to the Covid-19 pandemic, and also addresses the facts concerning the World Economic Forum, The Great Reset, the general scientific consensus surrounding Covid-19, the central government's vaccination programme and the safety of the Covid-19 vaccine. Van Cann and Jansen refer to it and will not repeat it. This concerns in particular chapters 1, 2, 5 and 6 of the State's SoD.

7. For the rest, Van Cann and Jansen confine themselves to disputing the facts put forward by [claimant 1] et al., in which, in summary, it is asserted without substantiation that the World Economic Forum is engaged in carrying out a malicious genocide plot under the name 'The Great Reset', of which Van Cann and Jansen are supposed to form part. No explanation whatsoever is given as to why Van Cann, Jansen, the NOS or De Telegraaf would benefit from the domination of the Dutch population by the World Economic Forum, let alone what purpose it would serve them to make the alleged genocide of the Dutch population possible. The assertions of [claimant 1] et al. are therefore, in addition to being unsubstantiated, also implausible.

B.ii. Role of the media during the coronavirus crisis

8. During the Covid-19 pandemic the NOS and De Telegraaf played a crucial role in informing the Dutch population about all aspects of the pandemic. The Covid-19 pandemic spanned an extremely hectic time in which, among others, the media were under great and continuous pressure to report daily on the newsworthy facts surrounding the Covid-19 virus. The overwhelming amount of information arising from (the fight against) the Covid-19 pandemic required editorial decisions.

9. In general terms, the NOS and De Telegraaf can state that they included the most important facts relating to the Covid-19 pandemic in their reporting. Although the tenor of the NOS and De Telegraaf differs in substance on certain points, both media made every effort to report faithfully and accurately on the Covid-19 pandemic. In that context, the NOS and De Telegraaf consider it important to emphasise that none of their publications about Covid-19 and the coronavirus crisis has been found to be unlawful.

10. The reporting of the NOS and De Telegraaf during the Covid-19 pandemic can mainly be categorised as (the) 'general informing' of the public. After all, the great majority of the publications of both media concerned addressing news of a factual nature, for example about (the speed of) the spread of Covid-19, its contagiousness, the deaths, international comparisons in that regard and/or proposed coronavirus measures at home and abroad. These articles were supported by the accepted scientific consensus at that time and were produced with due care.

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11. The NOS and De Telegraaf are aware that their reporting has often been used on social media as ammunition in a conflict between supporters and opponents of the Dutch government's coronavirus measures.[5] However, the use of factual news as a driver of conflicts on social media is no reason to speak of unlawful reporting on the part of the NOS and De Telegraaf, let alone on the part of Van Cann and Jansen.

B.iii. Supplementing the facts

12. Insofar as separate or additional facts are relevant to the legal position of Van Cann and Jansen, they will address them further on in this statement of defence.

C. PRIMARILY: NO PERSONAL LIABILITY

C.i. No qualitative liability of editors-in-chief

13. In these proceedings [claimant 1] et al. hold Van Cann and Jansen personally liable for the alleged unlawful reporting of the NOS and De Telegraaf. In the summons, [claimant 1] et al. rely on the capacity of Van Cann and Jansen as editor-in-chief of NOS Nieuws and of De Telegraaf respectively:

"Under the leadership of Van Cann, the NOS gave its full cooperation to the insistent and fear-inducing conveying of the Covid-19 narrative, which was quite clearly aimed at inducing people, by means of social pressure and a misrepresentation of the facts, to take Covid-19 injections"[6]

and

"Jansen [in the capacity of editor-in-chief, counsel] led the editorial staff with the same editorial responsibilities and tasks as were set out above with regard to Van Cann. The same allegations apply to him as to Van Cann" [...][7]

14. The summons does not describe any active involvement of Van Cann and Jansen in the contested reporting of the NOS and De Telegraaf, nor does any direct involvement of Van Cann and Jansen appear from the publications of the NOS and De Telegraaf submitted as exhibits 46 and 52. [claimant 1] et al. merely suggest, by way of assertion, that Van Cann and Jansen directed the production of the reporting during the coronavirus crisis. However, the concrete assertions of [claimant 1] et al. regarding the alleged unlawful conduct of Van Cann and Jansen reveal only allegations that can be attributed to the NOS and De Telegraaf as the publishing medium:

"First of all, [claimant 1] et al. wish to point to the fact that the NOS presented the first infected coronavirus patient as a person who, because of the Covid-19 virus, immediately changed from a healthy person into someone who was (all but) dead. Dead people or sick people in the

[fn 5] See, for example, with regard to De Telegraaf: Schaper et al., 'Coronascepsis in de media', Sociaal en Cultureel Planbureau, The Hague 2023.

[fn 6] Summons, paragraph 169.

[fn 7] Summons, paragraph 178.

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street, people in hospitals and people on ventilators in the ICU: that is how the picture of an infection was portrayed by the NOS."[8] and

"From the beginning of the pretended Covid-19 pandemic, De Telegraaf, with its newspaper and websites under Jansen's final editorship, did everything it could to cause great fear and panic among its readers and viewers"[9]

15. [claimant 1] et al. apparently base the personal liability of Van Cann and Jansen on a qualitative liability that would arise from their position as editor-in-chief of the NOS and De Telegraaf. That is a legally incorrect premise: with regard to press publications, it is the medium – and not the editor-in-chief – that bears final responsibility and possible liability for the content of publications. After all, it is the publishing legal entity that performs the relevant formal legal act of placing a publication or a series of publications.[10]

16. The term 'editorial responsibility' as put forward by [claimant 1] et al. in support of the qualitative liability[11] is a term that harks back to the autonomy of an editorial office under the Media Act and is unrelated to the liability of an editor-in-chief or editorial office.[12] Editorial responsibility is not (chief) editorial liability. Settled case law confirms that within media law there is no room for qualitative liability of the chief editorship, or for a regime under which editors-in-chief are, legally speaking, in principle always liable for what a medium publishes:

"The claim, insofar as it is directed against [defendant 3] as editor-in-chief of De Telegraaf, will however be dismissed. An editor-in-chief is not automatically personally liable for every unlawful publication that appears in his newspaper; to that extent, no form of qualitative liability applies either. In this light, insufficient explanation has been given as to what the unlawfulness committed by [defendant 3] is supposed to consist of."[13]

C.ii. 'Chilling effect'

17. One of the reasons why qualitative liability is regarded as unacceptable in media law is the danger of a chilling effect on press freedom. Imposing personal liability on (chief) editors may lead to reluctance to investigate or publish social abuses. Even where authors or editors of specific articles are concerned, of whom it can indeed be said that they are

[fn 8] Summons, paragraph 162.

[fn 9] Summons, paragraph 179.

[fn 10] District Court of The Hague (preliminary relief judge) 7 February 2018, ECLI:NL:RBDHA:2018:1301, para. 4.2: "Before proceeding to the substantive assessment of the dispute, the preliminary relief judge notes that he – like Consumentenbond et al. – is surprised that Roompot has also summoned [defendant sub 2]. [defendant sub 2] is – as a researcher and as an editor of the Consumentengids – employed by the Consumentenbond. Legally speaking, it is the Consumentenbond that decides to publish the contested article. It cannot be seen that any unlawful publication can be held against [defendant sub 2] solely on the ground of her employment with the Consumentenbond. All the less so now that concrete/specific allegations that would (or could) make her (jointly) liable have been neither asserted nor shown. [...]"

[fn 11] Summons, paragraph 178.

[fn 12] See art. 1.1 [illegible] under a and b of the Media Act 2008 (Mediawet 2008).

[fn 13] District Court of Amsterdam 14 February 2018, ECLI:NL:RBAMS:2018:763, para. 4.43.

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directly responsible for the content of articles, a court should exercise restraint in establishing personal liability:

"Liability of editors in employment should be applied with restraint, partly in connection with the 'chilling effect'."[14]

18. [claimant 1] et al. are in these proceedings a procedural vehicle for the foundation Recht Oprecht, which, led by the lawyers of [claimant 1] et al.[15], deliberately chooses a personal attack on Van Cann and Jansen.[16] In the eyes of their supporters, [claimant 1] et al. portray Van Cann and Jansen as serious criminals.[17] The intimidating tactics of [claimant 1] et al. are fuelled, among other things, by the distribution of banners directed against Van Cann and Jansen.[18] These banners are placed, among other places, in meadows together with an upside-down Dutch flag, a distress signal known from recent farmers' protests (exhibit 1). Combined with the already known violence against journalists[19], the recent warnings of the NCTV about 'conspiracy extremists'[20], and viewed against the mass protests of Stichting Recht Oprecht[21], this casting of suspicion by [claimant 1] et al. creates an extremely threatening and unpleasant situation for Van Cann and Jansen. It can be said that [claimant 1] et al. are thereby aiming precisely at the above-mentioned chilling effect.[22] On this ground alone, the claims against Van Cann and Jansen must be dismissed.

C.iii. No personal fault on the part of Van Cann and Jansen

19. Finally, neither Van Cann nor Jansen is personally at fault in respect of the reporting of the NOS and De Telegraaf on the Covid-19 pandemic. [claimant 1] et al. assert that:

"[Van Cann] was deputy editor-in-chief of NOS Nieuws from 2011 and became the new editor-in-chief of NOS Nieuws as of 1 September 2022"[23] [...]

[fn 14] District Court of Amsterdam 25 July 2018, ECLI:NL:RBAMS:2018:5130, para. 4.7.3.

[fn 15] https://www.advocatie.nl/tuchtrecht/voorwaardelijke-schorsing-voor-antivax-advocaat-die-ggd-medewerkers-prikbus-intimideerde/.

[fn 16] https://rechtoprecht.online/rechtszaak: 'Each of the defendants is being held liable by the claimants jointly and severally and in a private capacity on account of the participation in this project alleged by the claimants. The claimants allege that the defendants, both in person and as a group, intentionally acted unlawfully, as a result of which the claimants are suffering considerable damage. The foundation is of the opinion that conducting these civil proceedings serves a major public interest.'

[fn 17] Summons, paragraphs 274 - 280.

[fn 18] https://rechtoprecht.online/mediadoeken.

[fn 19] https://nos.nl/artikel/2395423-verdachten-van-aanslag-op-groningse-journalist-zijn-corona-ontkenners.

[fn 20] https://nos.nl/artikel/2451478-nctv-waarschuwt-voor-complotextremisten.

[fn 21] https://rechtoprecht.online/nieuwsbrief-3: "On 22 November 2023 many people (> 150 people) braved the cold and went with banners, lorries, etc. to the square 'Het Zaailand' in front of the Leeuwarden District Court, in order to express their support for the seven claimants in these civil proceedings on the merits, and indeed for all Covid-19 victims throughout the world. All these supporters of course knew that no members of the public would be present in the court at the docket hearing of 22 November 2023. The regular media (the msm) reported, as expected, that all these people were supposedly simple-minded and thought they could get into the court as members of the public!! Fortunately the aware Dutch citizen does know [illegible]

[fn 22] As the State argues in its statement of defence dated 10 January 2024, paragraph 1.13.

[fn 23] Summons, paragraph 156.

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"The manner in which the NOS reported on the pretended Covid-19 crisis was determined by Van Cann" and "From the beginning of the pretended Covid-19 crisis, namely from January 2020, Van Cann chose, through the tone, photographs and suggestions in the editorial work of the NOS, to aim at maximum panic and fear among the population." and

"Jansen is personally liable for the censorship he caused by, on the one hand, cooperating in a cover-up and, on the other hand, uncritically adopting the official narrative, while even minimal journalistic research should already have made clear that this narrative [was] false"

20. These assertions are factually incorrect. First, Van Cann was not appointed editor-in-chief of NOS Nieuws (and therefore not of "the NOS") until 1 September 2022 (exhibit 2).[24] [25] Even if your Court were to decide in favour of qualitative liability of editors-in-chief, Van Cann therefore cannot be held personally liable for this reason.

21. Second, neither Van Cann nor Jansen is personally at fault in respect of 'the reporting' of the NOS and De Telegraaf on the Covid-19 pandemic, as required under art. 6:162(1) DCC. [claimant 1] et al. merely assert that Van Cann and Jansen chose a particular narrative and allegedly committed 'censorship'. However, this alleged malicious intent does not appear from the documents submitted by [claimant 1] et al.. For the sake of good order and for the sake of completeness, Van Cann and Jansen deny that they are part of a cover-up or of The Great Reset, let alone that they have been guilty of censorship. The documents submitted by [claimant 1] et al. show from the outset no evidence at all of a 'cover-up' in which Van Cann or Jansen could have 'cooperated'. The unjustified personification of the NOS and De Telegraaf therefore has – in addition to no legal basis – no factual basis either.

C.iv. Conclusion on the primary defence

22. The interim conclusion regarding the primary defence is that [claimant 1] et al. have no ground for holding Van Cann and Jansen liable. There is no qualitative liability for editors-in-chief. Moreover, Van Cann and Jansen are not personally at fault in any way in respect of the reporting of the NOS and De Telegraaf on the Covid-19 pandemic. With this summons and the accompanying banners, [claimant 1] et al. aim to exert a chilling effect on press freedom. This is a deplorable matter and a violation of freedom of expression. On these grounds alone, claims I-III on the part of [claimant 1] et al. must be dismissed as regards Van Cann and Jansen.

D. IN THE ALTERNATIVE: NO UNLAWFUL ACTS

23. Should your Court, contrary to expectation, agree to a contra legem liability of Van Cann and Jansen for the general reporting on the Covid-19 pandemic by their employers, they defend themselves as follows.

[fn 24] See also: https://nos.nl/artikel/2436821-giselle-van-cann-nieuwe-hoofdredacteur-nos-nieuws.

[fn 25] The evidence that [claimant 1] et al. submit in support of their claims is dated 29 January 2020, two years before Van Cann took office.

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D.i. The NOS and De Telegraaf

24. The complaints of [claimant 1] et al. about the reporting of the NOS and De Telegraaf can be summarised as follows:

(i) The tone of the NOS and De Telegraaf regarding the 'Covid-19 news' is alleged to be unlawful, because in the reporting concerned they deliberately and wrongly aimed at maximum fear and panic among the population;[26]

(ii) The NOS and De Telegraaf should have reported on facts that [claimant 1] et al. regard as newsworthy, such as specific hearings of European committees, the contents of Covid-19 vaccination package leaflets and 'countless' health risks that, according to [claimant 1] et al., would result from the Covid-19 vaccinations;[27] and

(iii) The NOS and De Telegraaf should have given the floor to scientists and experts who would have voiced the narrative proclaimed by [claimant 1] et al..[28]

25. The allegations under i-iii are characterised by [claimant 1] et al. as 'censorship' or 'neglect of the journalistic task' by the NOS and De Telegraaf over the period 2020 up to and including 2022. [claimant 1] et al. support a breach of a norm under article 6:162 DCC with a reference to the 'Treaty of Bordeaux' and – with regard to the NOS – the mission statement of the NOS on its website.[29] In support of the assertions under i-iii, [claimant 1] et al. submit one publication of the NOS (exhibit 46) and ten publications of De Telegraaf (exhibit 52). In short, these publications give a factual account of the spread of the Covid-19 virus on the basis of international sources such as the WHO, governments and bodies such as the RIVM.

26. Van Cann and Jansen are not personally liable for the tone of the reporting of the NOS and De Telegraaf (under i). The same applies to the alleged omissions (under ii and iii), such as not reporting the stories desired by [claimant 1] et al. or not inviting commentators who are agreeable to [claimant 1] et al.. Nor can Van Cann and Jansen simply be personally identified with the NOS and/or De Telegraaf. Nevertheless, Van Cann and Jansen will below, albeit briefly and for the sake of completeness, address the substantive objections that

[fn 26] Summons, paragraphs 160-162 and 179-180.

[fn 27] Summons, paragraphs 163-168 and 170-171.

[fn 28] See summons, paragraph 172. That [claimant 1] et al. are satisfied only with their 'own' experts is apparent from the summons, paragraph 181; [claimant 1] et al. dismiss the critics of government policy chosen by De Telegraaf as 'pseudo-critical' because they pay no attention to 'the great deception of the public', referring to the poisoning of the population with Covid-19 vaccination: "Insofar as Jansen might wish to defend himself with the fact that he engaged 'critical journalistic contributors' in the persons of Ronald Plasterk or Marianne Zwagerman, [claimant 1] et al. observe as follows. Both Plasterk and Zwagerman voiced a pseudo-critical sound about the approach to the pretended Covid-19 pandemic, but did not contest a single essential point of the narrative. Jansen used Plasterk and Zwagerman to give a platform to a sham opposition, so that the readership's confidence in the journalistic functioning of his editorial staff would be maintained, while in reality there was an intentional great deception of the public. [claimant 1] et al. were misled by Jansen in this way."

[fn 29] https://over.nos.nl/organisatie/.

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[claimant 1] et al. expressed in the summons about the publications of the NOS and De Telegraaf (submitted by [claimant 1] et al. as exhibits 46 and 52).

D.ii. The correct assessment framework

27. The complaints of [claimant 1] et al. cover the tone (i) and the content (ii-iii) of the reporting of the NOS and De Telegraaf.

28. Under article 10(1) ECHR, the NOS and De Telegraaf have far-reaching rights to report on events that touch on public debate. After all, the media fulfil an essential function in a democratic society and their freedom of expression may not lightly be subjected to restrictions. It is the task of the media to fulfil the role of public watchdog and to provide information on matters of general interest:

"In this respect the essential function the press fulfils in a democratic society must be emphasized. Although the press must not overstep certain bounds, its duty is nevertheless to impart - in a manner consistent with its obligations and responsibilities - information and ideas on all matters of public interest."[30]

29. Press freedom means, among other things, that the media, such as the NOS and De Telegraaf, are free to publish both opinions and facts in every conceivable form. This is so even if the content is shocking or offensive ("offend, shock and disturb").[31] It is (therefore) up to the media how they frame their own journalistic publications and how they present the account of their journalistic investigations.[32] It is not the task of the media, let alone an obligation, to include every point of view (desired by third parties) in their reporting. The media need not even always be neutral in their reporting, provided there is no question of reckless insinuations or of a third party being unjustly placed in a bad light.[33]

30. Press freedom may only be restricted if this is necessary in a democratic society.[34] Such a restriction may be based on unlawful conduct by the media under article 6:162 DCC. Whether there is unlawful conduct by the media is determined by (European) case law. Any acting in conflict with non-binding norms such as the 'Treaty of Bordeaux' and the mission statement of the NOS

[fn 30] ECtHR 5 July 2016, 26115/10 (Kurski v. Poland), para. 50, see also: ECtHR 24 February 1997, Reports 1997-[illegible] (De Haes and Gijsels/Belgium), ECtHR 29 March 2016, 56925/08 (A.B./Switzerland).

[fn 31] ECtHR 7 December 1976, NJ 1978/283 (Handyside); ECtHR 8 July 1986, NJ 1987/901 (Lingens) and ECtHR 6 May 2003, Mediaforum 2003/6 (Perna/Italy); ECtHR 7 February 2012, LJN: BW0603 (Axel Springer); ECtHR 14 June 2016, no. 53421/10 (Jiménez Losantos/Spain), ECtHR 17 January 2017, no. 31566/13 (Tavares de Almeida Fernandes and Almeida Fernandes/Portugal).

[fn 32] See, among others, ECtHR 10 May 2011, no. 48009/08, RAV 2011/82; EHRC 2011/108, with annotation by A.W. Hins (Mosley/UK), Supreme Court 26 March 1999, LJN: ZC0040, Supreme Court 28 September 2012, NJ 2012, 556 (Tros/Pretium), preliminary relief judge District Court of Amsterdam 28 February 2011, LJN: BP6121 (Partij voor de Dieren/NOS), District Court of the Northern Netherlands 25 November 2015, ECLI:NL:RBNNE:2015:5428 (X/EO) and preliminary relief judge District Court of Amsterdam 28 February 2017, ECLI:NL:RBAMS:2017:1151 (Forum voor Democratie/NOS), preliminary relief judge District Court of Amsterdam 27 November 2020, ECLI:NL:RBAMS:2020:6022 (Hema / AVROTROS).

[fn 33] Preliminary relief judge District Court of Amsterdam 27 November 2020, ECLI:NL:RBAMS:2020:6022 (Hema/AVROTROS), para. 4.4

[fn 34] ECtHR 26 April 1979, NJ 1980, 146 (Sunday Times).

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is irrelevant to your Court's (possible) judgment on lawfulness, as will be explained below.

Code of Bordeaux: rules of conduct

31. The reliance of [claimant 1] et al. on the 'Treaty of Bordeaux' (read: the Code of Bordeaux) is unfounded. The Code of Bordeaux is a unilateral declaration issued in 1954 by the International Federation of Journalists: an internal standard of decency without external effect. The Code of Bordeaux is one of the starting points of the Guidelines for Journalism (Leidraad voor de Journalistiek)[35] and is thereby part of a complaints procedure before the Netherlands Press Council (Raad voor de Journalistiek, "RvdJ").[36] The RvdJ assesses against the journalistic rules of conduct and reaches a conclusion on journalistic (lack of) care. The court assesses against the law, treaties and case law and reaches a conclusion on (un)lawfulness.[37]

The 'mission statement' of the NOS

32. With regard to the NOS, its mission statement is likewise not relevant to the assessment of whether its publication(s) are unlawful. Under article 2:34a of the Media Act ("Mw"), the NOS has a statutory remit to report facts that it considers newsworthy. The ECtHR draws a clear line when it comes to the broad journalistic freedoms of 'state broadcasters', even where these 'state broadcasters' operate under an obligation to provide pluralistic and/or objective reporting:

"The Supervisory Board's decision correctly pointed out that the weight to be given to this information was a matter to be assessed, in principle, by the responsible journalists. Even considering that the news item in question concerned the ORF itself and its status under the Austrian broadcasting legislation, the Commission is satisfied that this element did not improperly influence the manner of reporting. Nor does the Commission find any indication that the manner of reporting was affected by inappropriate considerations relating to the fact that one of the successful applicants was Mr. Haider, being an opposition leader who had himself issued a press release on this matter."[38]

and

"The Court reiterates that the weight to be given to an item of information "is a matter to be assessed, in principle, by the responsible journalists" (see Jörg Haider v. Austria, no. 25060/94, Commission decision of 18 October 1995, DR 83, p. 66), and that the journalists and news editors enjoyed, under Article 10 of the Convention, a wide discretion on how to comment on political matters. The applicants did not sufficiently explain how it was possible, on the basis of the evidence and information available and in the absence of complaints of undue pressure by the journalists themselves, to distinguish between Government-induced propaganda and genuine political journalism and/or routine reporting on the activities of State officials (see, by contrast, Saliyev v. Russia, no. 35016/03, § 68, 21 October 2010)"[39]

[fn 35] https://www.rvdj.nl/leidraad.

[fn 36] See https://www.rvdj.nl/over-de-raad. De Telegraaf has not joined this complaints procedure.

[fn 37] Supreme Court 8 April 2011, LJN BP6165, NJ 2011/449, with annotation by E.J. Dommering (Pretium/Tros); District Court of Amsterdam 7 March 2012, ECLI:NL:RBAMS:2012:BV9330 (bookkeeper RDM/Quote), para. 4.7. See, vice versa, also Netherlands Press Council 25 June 2002, RvdJ 2002/23.

[fn 38] ECtHR 18 October 1995, no. 25060/94 (Haider/Austria), p 66.

[fn 39] ECtHR 19 June 2012, no. 29400/05 (Communist Party et al./Russia), para. 120.

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33. Settled Dutch case law also shows that the statutory remit of the NOS does not detract from its rights to report, under its own editorial control, on subjects that affect society.

"Article 2:34a of the Media Act provides that the NOS has the task of providing media content for the national public media service in the field of news, sport and events that is pre-eminently suited to joint provision. According to the Explanatory Memorandum to the Media Act, the NOS can only fulfil its remit if it addresses and reaches various sections of the Dutch public (has regard to pluralism). The starting point is that, within the framework of the Media Act, the NOS is entitled to a broad degree of freedom with regard to the subjects to which it wishes to devote attention in its radio and television programmes, and the manner in which it does so."

34. The District Court of Amsterdam held, while expressly recognising the broad editorial freedom of the NOS, that the NOS only oversteps its limits of free reporting if it makes unreasonable editorial decisions and thereby abuses its statutory remit.

"In the light of what has been considered above and within the framework of the Media Act, the NOS is entitled to a broad degree of freedom with regard to the subjects to which it wishes to devote attention in its radio and television programmes and the manner in which it wishes to do so. The NOS only acts unlawfully if in doing so it makes choices that could not reasonably have been made and thereby abuses that freedom."[40]

35. The correct legal framework will be applied below to the objections of [claimant 1] et al..

D.iii. Application of the correct assessment framework

General considerations

36. The above legal framework shows the broad power of the NOS and De Telegraaf to decide for themselves which news they report, in what form they do so and what tone they use in doing so. There is no interest, nor any legal basis, that can compel the media to report specific facts. There is no must-carry obligation in the context of (European) political reporting.

37. The bases incorrectly relied on by [claimant 1] et al., such as the Code of Bordeaux and the mission statement of the NOS, are used as a broad basis for proclaiming that [claimant 1] et al. consider that the NOS and De Telegraaf engaged in improper journalism. The summons is no more than a string of personal criticism, followed by the hasty conclusion that there is 'therefore' 'quite clearly' censorship and unlawful conduct on the part of the NOS and De Telegraaf.[41] This bare assertion, combined with only one (!) submitted publication of the NOS and a handful of unexplained publications of De Telegraaf[42] in which the coronavirus crisis is reported neutrally, is wholly insufficient to conclude that there has been an unlawful form of editorial conduct over a period of two years. Let alone that this would constitute sufficient substantiation

[fn 40] District Court of Amsterdam 28 February 2011, ECLI:NL:RBAMS:2011:BP6121 (NOS/PvDD), para. 4.2.

[fn 41] See by way of illustration the summons, paragraphs 164, 175, 181.

[fn 42] Out of the hundreds of reports of the NOS (see https://nos.nl/zoeken?q=corona&page=1) and De Telegraaf (see https://www.telegraaf.nl/zoeken/corona) during the coronavirus crisis.

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for the assertion that there was 'deliberate misleading of the Dutch population' by the NOS and De Telegraaf, as underlies the claim of [claimant 1] et al. under I.

38. In addition to being unfounded, the claims of [claimant 1] et al. are therefore (wholly) insufficiently substantiated. On that basis, the NOS and De Telegraaf confine themselves to disputing the criticism of [claimant 1] et al.

Re i) the tone of the reporting

39. As regards the tone of the reporting of the NOS and De Telegraaf, they refer, first of all, to the factual framework as submitted with the State's SoD. The NOS and De Telegraaf reported facts put forward by the Health Council, foreign reporters, the RIVM and (foreign) government bodies. In short, there was a worldwide pandemic, recognised by the WHO, that posed a threat to public health. That on some points there may have been an urgent and warning tone in the reporting of the NOS and De Telegraaf (which [claimant 1] et al. fail to specify) was therefore justified.

40. Second, the case law cited shows that it is up to the NOS and De Telegraaf to decide what tone they adopt in their reporting. The fact that [claimant 1] et al. themselves interpreted this tone as frightening does not alter that. As regards the content of the headlines of news articles, it further applies that these must be read in the context of the reporting, and that a medium has far-reaching latitude to draw the readership's attention to a publication by using a provocative headline.[43]

Re ii and iii) the content of the reporting

41. The content of the reporting of the NOS and De Telegraaf was in line with the general worldwide scientific consensus surrounding (the fight against) Covid-19. In this context, reference is made to chapters 1-6 of the State's SoD. The reporting on the Covid-19 pandemic was thus sufficiently supported by the facts, which illustrates the lawfulness of the reporting of the NOS and De Telegraaf.

42. Second, it is not for [claimant 1] et al. to determine which facts are reported by the NOS and De Telegraaf. The fact that [claimant 1] et al. learned in another way of the European hearings they cite, the repeated opinion of controversial politicians and the conspiracy rhetoric used in the summons shows that there was also no need on the part of [claimant 1] et al. to take note of these reports via the NOS and De Telegraaf. The NOS and De Telegraaf have no news monopoly. Nor is it for [claimant 1] et al. to determine who should be consulted as an 'expert' by the NOS and De Telegraaf in their reporting.

[fn 43] See, among others, ECtHR 1 June 2010, no. 16023/07 (Suárez/Spain) and ECtHR 10 November 2015 (Couderc and Hachette Filipacchi Associés/France), Mediaforum 2016/10, no. 3, with annotation by W.F. Korthals Altes.

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43. Third, in addition, with regard to the submitted articles (exhibits 46 and 52), the NOS and De Telegraaf mainly fulfilled a messenger function in respect of information originating from another source. That [claimant 1] et al. acknowledge the messenger role of the NOS and De Telegraaf is also apparent from the summons:

"Van Cann slavishly followed the official narrative as imposed worldwide by the WHO and uncritically followed by all defendants"[44]

"[...] which was uncritically adopted by the NOS from international press agencies and from other channels"[45]

44. On the basis of this messenger function, it cannot be asserted without further explanation or substantiation that the NOS and De Telegraaf would be liable for conveying information originating from reliable sources, such as scientifically recognised bodies and governments worldwide.[46]

45. Finally, neither the summons nor the evidence submitted by [claimant 1] et al. shows why the submitted publications of the NOS and De Telegraaf would not be supported by the facts. Nor is it substantiated why experts to whom the NOS and De Telegraaf gave the floor would not be competent[47], let alone why the NOS and De Telegraaf could be held liable for this. The same applies to the information from recognised bodies or press agencies adopted and cited by the NOS and De Telegraaf. [claimant 1] et al. rely exclusively on a contrary, preposterous and suggestive story about a so-called Great Reset initiated by the World Economic Forum, 'poisonous' vaccinations and/or the Pfizer papers and their incorrect interpretation thereof.[48] The NOS and De Telegraaf cannot be compelled to report on facts that they do not consider important.

46. Indeed, had they presented the aforementioned subjects as facts, the NOS and De Telegraaf might very well have acted in breach of the journalistic codes or of what is socially acceptable.

For the sake of completeness: the NOS acts in accordance with its statutory remit

47. With regard to the NOS, it can be stated that, in line with the above arguments, it made lawful use of its editorial freedoms. Nevertheless, the NOS will briefly address the arguments of [claimant 1] et al. that are put forward in the context of its mission statement and the obligations under art. 2:34a Mw underlying it.

[fn 44] Summons, paragraph 160.

[fn 45] Summons, paragraph 162.

[fn 46] District Court of Amsterdam 15 November 2023, ECLI:NL:RBAMS:2023:7180 (X/BIND et al.), para. 4.22.

[fn 47] In the summons, [claimant 1] et al. in no way explain which NOS experts were wrongly engaged, nor what 'untrue' information they are supposed to have spread. With regard to De Telegraaf, only Ronald Plasterk and Marianne Zwagerman are discussed, who – in so many words – did not go far enough along with the conspiracy rhetoric. Without further explanation of the 'untruths' that are supposed to have been proclaimed by experts at the NOS and De Telegraaf, both the NOS and De Telegraaf can confine themselves to the position that they did indeed give the floor to sound experts during the coronavirus crisis.

[fn 48] https://nos.nl/nieuwsuur/collectie/13903/artikel/2438923-bronnen-bij-ophef-over-de-pfizer-papers.

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48. The evidence submitted by [claimant 1] et al. gives no indication that the NOS acted in breach of its obligations under article 2:34a Mw, let alone that there were deliberately unreasonable editorial choices that led to abuse of its press freedom. As stated, the reporting of the NOS is grounded in the scientific consensus surrounding the coronavirus crisis, it acted mainly as a messenger, and it enjoys far-reaching editorial freedom under European and Dutch case law. [claimant 1] et al. mainly consider that the news of the NOS cannot be regarded as objective and pluralistic because it does not accord with the conspiracy rhetoric they employ.

49. For the sake of good order: the NOS cannot be accused of having reported one-sidedly during the Covid-19 pandemic. Submitted as exhibits 3 to 22 are publications of the NOS showing that it also paid attention to criticism of the State's coronavirus policy and paid attention to alternative Covid-19 vaccinations and Covid-19 treatments.

D.iv. Conclusion on the alternative defence

50. Should your Court be of the opinion that Van Cann and Jansen can be held liable for the reporting of the NOS and De Telegraaf, then it appears, in the alternative, that the NOS and De Telegraaf enjoy far-reaching protection when it comes to press freedom and exercising their own editorial control. This freedom also accrues to Van Cann and Jansen as editors-in-chief.

51. The assertions that the NOS (Van Cann) and De Telegraaf (Jansen) exercised editorial control in an unlawful manner are not substantiated at all by [claimant 1] et al., or at least have no basis in the facts asserted, the law or case law. The reporting of the NOS and De Telegraaf was supported by the scientific consensus and was done mainly from a (lawful) messenger function. Finally, the NOS reported in accordance with its obligations under art. 2:34a Mw by giving a pluralistic and objective account of the coronavirus crisis.

52. The above leads to the conclusion that the claims of [claimant 1] et al. must also be dismissed on alternative grounds because of the absence of unlawful acts on the part of the NOS and De Telegraaf.

E. FURTHER IN THE ALTERNATIVE: DEFENCE AGAINST THE (OTHER) CLAIMS

53. Should your Court, contrary to expectation, decide that the reporting of the NOS and De Telegraaf on the Covid-19 pandemic was unlawful and that Van Cann and Jansen are personally liable for this reporting, Van Cann and Jansen defend themselves further in the alternative as follows.

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E.i. No question of the alleged intent or prior knowledge

54. [claimant 1] et al. allege that they suffered personal injury because they were intentionally induced by Van Cann and Jansen to take a Covid-19 vaccination which Van Cann and Jansen allegedly knew was not safe or effective.[49]

55. The assertions of [claimant 1] et al. in these proceedings consist exclusively of unfounded accusations. [claimant 1] et al. have in no way demonstrated that there is a 'worldwide conspiracy' or an accompanying 'cover-up'. Above all, it does not appear from the available factual material that Van Cann and Jansen 'intentionally' induced [claimant 1] et al. to take a Covid-19 vaccination and/or that Van Cann and Jansen knew that the Covid-19 vaccine was unsafe or not effective.

56. The claim under I on the part of [claimant 1] et al. is therefore not allowable against Van Cann and Jansen from the outset, even if your Court were to conclude that Van Cann and Jansen are personally liable for the unlawful reporting of the NOS and De Telegraaf.

E.ii. No damage and/or causation

57. With regard to the damage allegedly suffered by [claimant 1] et al. and the alleged causation, Van Cann and Jansen endorse the defence raised by the State in chapter 7 of the State's SoD.

58. In short, there is no evidence whatsoever on the part of [claimant 1] et al. to substantiate the damage allegedly suffered. For instance, there is no evidence that [claimant 1] et al. were vaccinated at all, or which vaccine they took. In addition, the downright tendentious 'medical statements' of [claimant 1] et al. come from company doctor and anti-corona activist Alexander van Walraven[50], which in itself forms an at least questionable basis for the alleged physical injury. That [claimant 1] et al. suffered damage from taking the Covid-19 vaccinations is not plausible either: after all, the authorised vaccines have proven safe on a large scale, or at least there has been no sign of the genocide of the Dutch population through the 'unsafe' vaccines predicted by [claimant 1] et al.

59. Specifically with regard to the role of Van Cann and/or Jansen, it additionally applies that [claimant 1] et al. do not explain how the 'serious physical injury' relates to the role of Van Cann and Jansen as editors-in-chief of the NOS and De Telegraaf. Thus it remains undiscussed and unproven which articles [claimant 1] et al. specifically read in their individual cases, and which articles led them – each individually – to be forced into taking a vaccination without reading a package leaflet.

60. It is moreover remarkable that [claimant 1] et al. mainly refer to information from October 2022, which is supposed to show that the Covid-19 vaccines are dangerous and about which the NOS and De Telegraaf allegedly wrongly failed to publish (exhibits 48-50). Although

[fn 49] Summons, petitum under I.

[fn 50] See "Manifest van Alexander van Walraven aan alle artsen van Nederland" (Manifesto of Alexander van Walraven to all doctors of the Netherlands) via https://www.youtube.com/watch?v=sOpflZOaqmU. And https://www.spoor3.com/alexander-van-walraven-bedrijfsarts/.

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[claimant 1] et al. provide no evidence of their own vaccinations, the Covid-19 vaccination campaign largely took place before October 2022.[51] It is therefore plausible from the outset that [claimant 1] et al. too had themselves vaccinated before October 2022. From this it can be inferred that the failure of the NOS and De Telegraaf to publish about the events in October 2022 cannot have played any role in the decision of [claimant 1] et al. to take the Covid-19 vaccine.

E.iii. Conclusion on the further alternative defence

61. Already by reason of the wording that Van Cann and Jansen allegedly acted 'knowingly' with regard to a cover-up and allegedly 'knew' of the 'poisonous' Covid-19 vaccination, claim 1 of [claimant 1] et al. is not allowable. After all, it does not appear from the evidence submitted by [claimant 1] et al. that there was any malicious intent or prior knowledge with regard to the Covid-19 vaccinations. In addition, [claimant 1] et al. have not demonstrated that they actually suffered personal injury, having submitted deficient evidence. [claimant 1] et al. also fail to outline any causal link between the publications of the NOS and De Telegraaf and the damage they suffered, let alone that there is – as [claimant 1] et al. allege – a conditio sine qua non link.

62. On the basis of (also) the further alternative defence, the claims of [claimant 1] et al. must be dismissed in their entirety.

F. MEANS OF EVIDENCE

63. Van Cann and Jansen have exhibits 1 to 22, and possibly further additional exhibits still to be submitted, to demonstrate the correctness of the assertions disputed by [claimant 1] et al.

G. OFFER OF PROOF

64. Insofar as your Court holds that any burden of proof rests on Van Cann and Jansen, Van Cann and Jansen offer to prove these assertions by having witnesses heard.

WITH THE CONCLUSION

I. To dismiss the claims of [claimant 1] et al., either by declaring [claimant 1] et al. inadmissible in their claims, or by denying [claimant 1] et al. their claims;

II. To order [claimant 1] et al. jointly and severally to pay the costs of the proceedings, to be increased by the post-judgment costs in the amount of EUR 173.00 without service, increased by EUR 82.00 in the event of service, all to be paid within fourteen days of the date of the judgment, and – in the event that payment of the (post-judgment) costs does not take place within the stated period – to be increased by the statutory interest on the (post-judgment) costs calculated from the end of that period for payment,

[fn 51] https://www.rijksoverheid.nl/documenten/publicaties/2020/12/17/tijdlijn-start-coronavaccinaties.

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all of the above, insofar as the law permits, declared provisionally enforceable.

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