The District Court of The Hague has ordered the Netherlands Authority for Consumers and Markets (“ACM”) in preliminary relief proceedings to take offline a news item (press release) with an instruction to consumers about Dutch energy company Hollandse Energie Maatschappij and to publish an amended text.
The order was prompted by a news item on the website of the ACM and a warning on consuwijzer.nl (the Dutch consumer information portal operated by ACM) about Hollandse Energie Maatschappij (“HEM”). HEM was accused of aggressive treatment of current and former customers, and of possible failure (or inability) to comply with earlier undertakings given to ACM regarding the compensation of (current and former) customers for excessive energy tariffs. This prompted ACM to post a news item on its site titled “ACM advice: does energy supplier HEM owe you money? If so, pay them only if that is reflected in your bill”.
HEM demanded in preliminary relief proceedings that the news item on ACM’s website and the warning on consuwijzer.nl be removed or changed. The court found that, in principle, ACM must be free to publish messages in light of the freedom of expression (Article 10 ECHR). That right may be restricted only if that is provided for by law and is necessary, for instance to protect the good name and rights of other parties.
The court then weighed the interests involved. On the one hand, ACM must be able to inform consumers about their rights and obligations in light of its statutory information task. On the other hand, HEM must be protected against reputational damage and the consequences of incorrect advice by ACM. The court considered that, 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 found that HEM had not acted in violation of the earlier undertakings given to ACM, partly because no specific agreements had been made regarding the timing of certain obligations. Furthermore, no pressure on or aggressive treatment of consumers was apparent from all the reports ACM received. There was therefore insufficient support for the statement in the news item that ACM has received “dozens of reports and complaints” from which it was apparent that “HEM treats customers aggressively during telephone calls and pressures them to pay bills”. There was also insufficient reason to assume that HEM would not compensate its current or former customers in accordance with the undertakings given.
This led to the conclusion that no misconduct had occurred that ACM had to expose to the public at large. All things considered, ACM was not free to publish the news item and HEM’s interest in being safeguarded from harmful publication must outweigh ACM’s interest. The court ordered ACM in preliminary relief proceedings – subject to a penalty of up to €100,000 – to remove the news item from its website, to state that the item had been found to be wrongful in part, and to change the warning on consuwijzer.nl.
This ruling demonstrates that there are limits to what authorities may publish of their own accord about companies under their supervision (‘naming and shaming’) and that the court is prepared to call the authorities to order if necessary.
More information on EU and Dutch consumer law and our other blogs can be found at consumentenrecht.info.
Information on dawn raids by ACM and the European Commission can be found at invalacm.nl.
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