The preliminary relief judge of the District Court of The Hague has in summary proceedings obliged the Authority for Consumers & Markets to take offline a news item with an instruction to consumers about the energy company Hollandse Energie Maatschappij and to publish a modified text.
The reason for this ruling is a news item on the website of the Authority for Consumers & Markets ("ACM") and a warning on consuwijzer.nl about Hollandse Energie Maatschappij (“HEM”). HEM was allegedly guilty of aggressive treatment of (former) customers and possibly not (able to) comply with earlier promises regarding compensation of (former) customers for energy tariffs that were too high. This was reason for the ACM to post a message on its site with the title “Advice ACM: Do you still get money back from energy supplier HEM? Then pay only if this has been processed on your account".
HEM demanded in preliminary relief proceedings that the news item on the ACM site and the warning on consuwijzer.nl be removed or adjusted. The preliminary relief judge considered that the starting point is that the ACM must have the freedom to publish messages based on freedom of expression (Article 10 ECHR). This right can only be restricted if this is provided for by law and is necessary, for example to protect the good name and rights of others.
The interim relief judge then comes to a weighing of interests. On the one hand, as part of its statutory informative task, the ACM must be able to inform consumers about their rights and obligations. On the other hand, HEM must be protected against reputational damage and the consequences of incorrect advice by the ACM. In this respect, according to the court in preliminary relief proceedings, the ACM, as part of the State, has a duty to publish correct and reliable information and to exercise due care in doing so.
The Court in preliminary relief proceedings concluded that HEM did not act in violation of the commitments with regard to (former) customers, partly because no concrete agreements were made about the timing of certain obligations. In addition, it cannot be deduced from all reports that there was pressure on or aggressive treatment of consumers. As a result, there is insufficient support for the assertion in the news report that the ACM has received “dozens of reports and complaints" that "show that HIM aggressively approaches customers during telephone calls and pressures them to pay bills.” There is also insufficient evidence to take into account that HEM will not compensate its (former) customers in accordance with the commitments.
This leads to the conclusion that there is no wrongdoing that needed to be exposed by the ACM to the wider public. All in all, the ACM was not free to publish the news item, and HIM's interest in being safeguarded from damaging publication must outweigh the ACM's interest. The court in preliminary relief proceedings orders the ACM - on pain of a penalty of up to €100,000 - to remove the news item from its site, to state that this message has been judged partly unlawful and to adjust the warning on consuwijzer.nl.
This ruling shows that there are limits to what authorities may publish on their own accord about companies under their supervision (naming and shaming) and that the court is prepared to blow the whistle on the authorities if necessary.
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