Media law
Media law revolves around the tension between two fundamental rights: freedom of expression and the right to privacy, honour and reputation. These are regularly diametrically opposed. When may you publish something? When can you stop a publication? And what do you do if the damage has already been done? Both in words and in images. Of course, being critical is allowed, and it is allowed to ruffle feathers, we know that as media law lawyers.
We provide guidance on everything to do with this balancing exercise: from unlawful publications to right-of-reply procedures, and from platform regulation to disputes.
Do you need legal advice straight away? Call 020 675 88 21.
Our role as media law lawyers
You engage a media law lawyer when you are faced with a publication, documentary or social media statement that affects you or your business. Or, conversely, when you yourself want to bring something out and want to know where the legal limits lie. As media law lawyers, we work at this interface every day.
As a media lawyer, we advise media makers, producers and journalists who want to bring out a publication. We think along about how best to frame a statement, how to apply the right of reply correctly and whether you are staying within the legal frameworks.
At the same time, we act for people – well-known or not – who are unwillingly part of a statement. We conduct summary proceedings to stop publications, secure rectifications and litigate for damages where necessary.
We know both sides of this. That helps.
Freedom of expression vs. privacy: how does the court weigh things up?
Freedom of expression and the right to privacy, honour and reputation are regularly diametrically opposed. Think, for example, of a documentary in which all kinds of revelations are made while the person concerned absolutely disagrees and wants to stop or remove the documentary.
How does that work in such a case? In principle, both fundamental rights carry equal weight. Whether freedom of expression takes precedence over the right to honour, reputation and a private life in a specific case depends on all the circumstances. Ultimately it is the court that decides which right prevails.
In the assessment the court makes, the most important factor is whether the statement is true. Put bluntly: the more serious the accusation in your statement, the stronger your evidence must be. Do the revelations in the documentary relate to criminal activities, for example? Then the journalist will need to have solid evidence for that.
It is further important whether the subject being exposed is something that concerns society. Is it, for example, a private matter that is being made public? Then it will not readily concern society and the statement is more quickly unlawful. Another factor that is weighed is whether the person in question is well known and seeks publicity themselves. If that is the case, that person will often also have to tolerate more. But there is a limit to that too.
This regularly occurs with programmes such as Boos, Zembla, Oplichters Aangepakt, Radar, Opgelicht?! and Stegeman op de Bres. Publications in regional and national newspapers can also be unlawful. Unlawful statements can be disseminated via social media too.
You can read what you can do about an unwanted broadcast or publication on our page on Unlawful press publication.
Entertainment lawyer: legal guidance in the creative industry
Within the creative industry you may face a unique mix of legal questions. Record labels, film producers, theatre makers and influencers deal with a mix of media law, copyright and contract law. Often all mixed together. Disputes over name credit or creative control. Questions about what may and may not be published about you or your work.
As an entertainment lawyer, we understand the dynamics of the sector. In the entertainment world, relationships are often long-term. A legal conflict does not automatically mean the end of your collaboration - we know that from experience. But there are always different interests in play. Think of creative freedom versus commercial pressure. Or privacy versus the wish to be visible. Artistic integrity sometimes clashes with tight deadlines and small budgets.
As an entertainment lawyer, we work for actors, presenters, directors, producers and other professionals in film, television, theatre and online. We know how a film production is put together, what the interests are in a recording contract and why an influencer deal is more than just a signature. We advise on collaboration agreements and help with disputes over unlawful publications. And where necessary, we stand up for you in the courtroom.
Media regulation: from traditional broadcasting to digital platforms
The media landscape has been considerably overhauled in recent years. Where radio and television were the norm for many years, the playing field is nowadays dominated by streaming services, social media and online platforms. Think of programmes such as Boos, Zembla and Oplichters Aangepakt, but also of publications via Instagram, TikTok or in regional and national newspapers.
All these media providers are regulated by a whole range of national and international laws, rules and treaties. From the Media Act 2008 to European legislation such as the Digital Services Act – we know our way around this complex field.
Media regulation exists at all kinds of levels. This includes the regulation of our national broadcasting system. But also the regulation of platforms and the tackling of disinformation. At national level we have the Media Act 2008. In addition, we have European legislation such as the Audiovisual Media Services Directive, the Digital Services Act and the Digital Markets Act.
Media Act 2008: regulation of Dutch public and commercial broadcasters
The Media Act regulates public broadcasters, commercial channels and video platforms. Think of the NPO and RTL, but also of YouTube and Netflix.
What else does the Act regulate? The Media Act determines who may join the broadcasting system. The Act also sets requirements for media: you must contribute to a pluralistic range of content. Public service broadcasting has a clear task: to inform, educate, offer culture and provide entertainment. The Act further protects young people and sets limits on advertising, sponsorship and product placement.
The aim the Media Act pursues is a varied range of content and access for diverse groups.
The Dutch Media Authority (Commissariaat voor de Media) checks whether parties comply with the Media Act. It keeps public service broadcasting independent, checks whether the advertising rules are observed and monitors programme quotas. The Media Authority also issues licences to commercial broadcasters. Anyone who breaks the rules risks a sanction.
A concrete example: the prohibition on public service broadcasters serving third-party interests. The NPO, the RPO and public media institutions may not, through their activities, contribute to the profit of third parties. They must be able to demonstrate this to the Media Authority on request. This went wrong on Jinek. Guest Erland Galjaard was given ample opportunity to promote a piece of fitness equipment – which happened to belong to his wife, presenter Wendy van Dijk. KRO-NCRV paid a EUR 20,000 fine for this.
The Media Act remains in motion. Technology develops, European directives change – and the Act adapts.
The Audiovisual Media Services Directive: regulation of linear media services and VOD services
The Audiovisual Media Services Directive (Directive 2010/13/EU, revised in 2018) brought about an important shift in European media regulation. In the past, the law focused mainly on traditional broadcasters. Now we see that more and more audiovisual content is distributed via the internet. The AVMSD recognises this: the boundaries between distribution channels are blurring.
Level playing field: equal rules for comparable services
Why does the AVMSD extend to online services? To create a level playing field. Comparable services should fall under comparable rules – regardless of whether you broadcast via cable or via the internet. That way you avoid distortion of competition. Traditional broadcasters are no longer disadvantaged relative to new players.
In practice, implementing this principle remains challenging. Streaming services often operate worldwide with standardised offerings, while national regulation can differ from country to country. This can lead to complexity for international providers and to differences in how strictly rules are enforced.
The country-of-origin principle
Another important starting point of the AVMSD is the country-of-origin principle. This means that an audiovisual media service is primarily regulated by the Member State in which the provider is established. A streaming service established in the Netherlands that offers its services throughout Europe therefore falls under Dutch supervision. In the Netherlands that is the Media Authority.
The idea behind this principle is that it promotes the internal market and prevents providers from having to apply for separate licences in several countries. Restrictions are, however, included for situations in which a provider is evidently trying to circumvent one country by establishing itself elsewhere while the service is mainly aimed at that first country.
Investment obligations in European content
Large streaming services active in the Netherlands must invest 5% of their annual turnover in Dutch audiovisual productions such as series, films and documentaries. In addition, 60% of the productions must be made by an independent producer.
This investment obligation applies to streaming services with an annual turnover in the Netherlands of more than ten million. This includes, for example, Netflix, Amazon Prime Video and Disney+.
For producers and makers in the audiovisual sector, this offers opportunities: their position is strengthened by the investment obligation.
DSA and DMA: regulation of platforms
That social media platforms such as Facebook and X have created new challenges has by now proved an understatement. Through algorithms, these platforms determine what their users do and do not get to see. As a result, fake news has flourished for years. With all the consequences for the proper functioning of our democracy that entails.
The DSA and DMA are meant to put a stop to this. What does the DSA want to achieve? A safer internet by tackling illegal content. More transparency about how platforms work. Better protection of users against unwanted content. The DMA tackles a different problem: the dominant position of large tech companies. Think of Alphabet (Google, YouTube), Amazon, Apple, Booking.com, ByteDance (TikTok), Meta (Facebook, Instagram, WhatsApp) and Microsoft. Through stricter rules, the law wants to stimulate fair competition and make room for innovation.
Consequences of the DSA for media players
For media players, the DSA has various consequences.
First of all, a notice-and-action procedure has been included. A comparable arrangement already existed in the DSA’s predecessor, the Electronic Commerce Directive. Both arrangements provide that platforms such as Facebook, TikTok, YouTube and X are not liable for illegal content that recipients of their service transmit or store with the help of the platform. The platform only becomes liable for this if it has actual knowledge of the illegal nature of the content and does not act promptly to remove the content or make access to it impossible.
Where the DSA goes further is that it includes an obligation requiring platforms to introduce a procedure that enables individuals or entities to notify them of hosted illegal content. Platforms must also remove the illegal content and keep it removed. The latter is also a new obligation under the DSA. If the platform does not do this, it cannot rely on the exemption from liability.
In addition, the DSA contains transparency obligations about how platforms deal with content. A welcome obligation for media parties that depend on platforms, as it gives them insight into why particular content is or is not promoted.
The DSA also introduces transparency obligations around advertisements. Advertisements must be clearly identified and contain information about who places them and why the user is shown them. Platforms may also not show advertisements based on sensitive data such as sexual orientation, religion or race, and may not show targeted advertising to children.
Consequences of the DMA for media players
Where the DSA is mainly about user protection and illegal content, the DMA focuses on promoting fair competition in digital markets. In this way the DMA protects European consumers and businesses, provides for more competition and freedom of choice in digital markets, and arranges better supervision, for example of mergers and acquisitions.
The regulation applies to very large platforms that act as gatekeepers: platforms that have a strong economic position, a significant impact on the internal market, and are active in several EU countries.
Under the DMA, gatekeepers may not, for example, unfairly favour their own services over those of competitors. For instance, by placing their own services at the top of the search results. They must further make interoperability possible, by enabling users to send individual messages from one messaging service to another. Gatekeepers are also not permitted to prevent users from removing pre-installed apps.
Of particular relevance to the media industry is that gatekeepers are obliged to share data. Business users must be given access to data generated by them on the platform. For example, data from end-users who buy a product from the business user.
What can a media and entertainment lawyer do for you?
We advise and litigate a great deal for Dutch media companies that want to bring out a publication, such as producers, journalists and online platforms. We advise on how to make sure that the statement does not infringe the rights of the person concerned. We think along, for example, about how best to frame the statement and how to apply the right of reply correctly. We also advise on the showing of portraits, ambush journalism and source protection, or we review a script for unlawful elements, or during post-production we check whether all parts of your film or documentary fall within the legal frameworks.
We know the other side well too. We often act for people, well-known or not, who are unwillingly part of a statement. Where there is criminal defamation or calumny, it can also be worthwhile to report it to the police. You can read more about that on our page on criminal defamation and calumny. We advise and, where necessary, litigate to remove the statement and to obtain a rectification or damages. Because we know both sides, we know what to expect. That helps your case.
In addition, we have specialist knowledge of the various national and European regulations with which public broadcasters, commercial broadcasters, streaming services and platforms must comply.
Legal advice from a lawyer for unlawful publication - a selection of our recent work:
- Conducting proceedings over press publications and freedom of expression
- Advising on international-law aspects of media supervision
- Advising on advertising and sponsorship, via social media for example
- Advising on the Media Act and the Telecommunications Act
- Advising on national and international regulation for various providers of audiovisual media services and platforms
- Conducting proceedings over advertising statements before the Advertising Code Committee (Reclame Code Commissie)
