Certain blogs of “Special character” required to moderate forum members’ posts before publication

18 March 2008

Bart Beuving

On 1 November 2007, the Dutch court ruled that the Dutch paedophilia association Martijn must take measures to prevent pictures of the children of Prince Willem-Alexander and Princess Maxima being published on a forum on their website.

Martijn is an association with the object of spreading ideas on and acceptance of paedophilia. A member of the association published a picture of Princess Amalia on their website, which the Prince Royal and his wife sought to have removed.

Martijn complied with this in a timely manner. The Prince Royal sought an injunction to prevent any further publication of pictures of his children. The court allowed this injunction.

The court’s view was that Martijn’s freedom of speech did not extend to publishing these pictures. Placing these pictures on the forum was considered to be an intrusion of the privacy of the child and her parents. According to the court, the child’s portrait rights were also infringed.

The court attached importance to the fact that Martijn is an association for paedophiles. Because of the special character of the site, Martijn must be extra careful to prevent abuse of the website. For this reason, the court held that Martijn may be “different from perhaps owners or managers of websites which by their nature need not be anxious of such abuse and unintended use” and that therefore the association should take measures to remove the messages of individuals who did not exercise their freedom of speech in a responsible manner.

The court ruled that Martijn must check messages placed by its members prior to their publication. It stated that:

"It is incomprehensible why the defendant could not design its forum in a way that messages could only be placed after that check has taken place. The fact that this will result in some delay in the publication of the opinions of forum visitors does not lead to the conclusion that the defendant’s right to freedom of speech itself has not been upheld.”

It should be noted that the court was very anxious that this should not set a precedent that extended to other forums. Such preventive checks are only expected because of the nature of the blog. However, despite this it is likely that this assessment will be cited in other cases, especially where such blogs are viewed by the courts as being a “special character” of blog.

We understand that Martijn in response to this judgment has decided to stop enabling its members to place any pictures.