Ongehoord Nederland is a new Dutch broadcasting association that has had its own broadcasting spot on the Netherlands Public Broadcasting Service (NPO) since 2022. The broadcasting association acts for Dutch people who, as its name suggests, feel unheard by the mainstream media. Anyone in the Netherlands is allowed to start an aspiring broadcasting association when 50,000 paying members show up and their programme adheres to the journalistic code of the NPO. (1) Through this code – according to the NPO – the public gets an insight in how editorial boards organize their work and to which rules and standards they have to comply. (2) This code prescribes that information should be reliable and verified. (3)
Public broadcasting services are funded by the government, but the government has no control over the content of the programmes they broadcast. Nevertheless, standards are set to prevent waste of public resources, to ensure fair competition with commercial media companies. These criteria are set out in Article 2.1 of the Media Act. The key concepts in that article are quality, pluralism, independence and accessibility for all. (4)
Multiple times, Ongehoord Nederland has violated the NPO’s Journalism Code. They especially failed to comply with the rules on reliability. Mainly by spreading provable misinformation. This was established by public broadcasting ombudsman Margo Smit following a three-month investigation.
The ombudsman had already made a similar finding earlier this year. According to Smit, the broadcaster continues to give space for information that is blatantly incorrect. Even though Ongehoord Nederland has accepted the Journalistic Code.
According to other media, the name ‘Ongehoord Nederland’ suggests that their broadcasts are news reports, while in reality they are opinions that are presented as factual information. This is done without the application of the principle of giving the other party the chance to express their views. This violation does not in itself lead directly to the termination of the broadcaster, since the division of tasks and responsibility of both the media and the government is laid down in the Media Act. Article 2.33 Media Act stipulates that in case of repeated violation, the NPO can request that a broadcaster should no longer be recognised. On this basis, a request has currently been submitted to the State Secretary. (5)
The motivation for this investigation is a controversial broadcast on the 15th of September 2022. In this broadcast, Ongehoord Nederland showed several videos in which people of colour used physical violence against white people. The hosts of the programme claimed that “social media also shows the less exposed form of racism, namely cases where white people are attacked”. (6) However, according to the journalistic code, article B1, “opinions” presented as facts must be reliable and verified for accuracy. In this case, it was not clear whether the clips actually involved racism since the context of the videos was not known. The ombudsman’s conclusion was that the makers of the programme acted incorrectly according to the Journalistic Code. Moreover, the report revealed that unreliable information was repeatedly disseminated. (7)
Ongehoord Nederland subsequently criticized the NPO’s request. The broadcaster described this request as an attack on freedom of the press. This freedom is an essential part of freedom of expression, which is established in Article 7 of the Constitution. According to this article, no one needs prior permission to reveal thoughts or feelings through the printing press, subject to everyone’s responsibility under the law.
What is remarkable here is that both parties invoke this right. According to NPO, the journalistic integrity of all public broadcasters is compromised by the actions of Ongehoord Nederland. Journalism comes with many responsibilities. For instance, a journalist has certain rights such as source protection, but this is offset by the responsibilities of, for instance, the Journalistic Code. (8) NPO states that Ongehoord Nederland has repeatedly violated the code, which amounts to neglecting their journalistic responsibilities. On the other hand, Ongehoord Nederland stresses that removing an entire broadcaster would be a significant restriction of freedom of the press. According to them it leads to the exclusion of minority voices. (9)
Although freedom of expression is a fundamental right, it is not unlimited. This means that there are situations where restrictions on freedom of the press can be justified. A restriction on this freedom based on other legislation, such as the Media Act, may be legally acceptable. This implies that it is possible to restrict press freedom and withdraw recognition under the law. However, the question remains whether this is advisable. This is not just about the decision in the current case, but it is also about the larger question of how quickly politicians can intervene in public broadcasting. (10) Ultimately, it is up to the court to decide whether there is sufficient justification to infringe on Ongehoord Nederland’s freedom of the press.
Nikki de Groot
1. https://www.vrt.be/vrtnws/nl/2023/04/28/ongehoord-nederland/(50.000 betalende leden)
4. https://www.legalintelligence.com/documents/39778202?srcfrm=basic+search&docindex=3&stext=ongehoord%20nederland&rid=3e218219-64c6-4ac8-881e-d1750610e9f6 (AA 2023/0114 – Hins, A.W. – 1-2-2023)