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Specialist Guide to the

Global Leaders in Media Law Practice

The vibrant and dynamic Dutch media market reflects interesting and cutting-edge legal developments. Privacy and platform liability remain centre stage while the legislator attempts to promote national cultural audiovisual productions and regulators focus on digital developments.

The key legislative development in 2020 is the implementation of the Audiovisual Media Services Directive per 01 November 2020.

Although the legislator takes a “bare minimum” approach, implementing only the mandatory provisions of the AVMD, and the regulator is, as of December 2020, still working on the revised policy framework, the regulatory framework is now up to standard. Many international media operators continue to opt for Dutch jurisdiction following Brexit, following Netflix’ example.

The Dutch Media Act continues to be a work in progress. However, a draft proposal to require VOD-providers and cinema operators to invest a percentage of their local revenue in Dutch cultural audiovisual productions was recently put to public consultation. This reflects the legislator’s concern that Dutch cultural productions are “crowded out” by the prominence of international content on the Dutch market.

At the same time, proposals to ban advertising from public broadcasting are likely be enacted in 2021, intended to to promote regional and investigative journalism and to submit new public services to an ex-ante market-impact assessment by the competition authority ACM.

ACM marked the next step in the consolidation of print media by approving the acquisitions of magazine publisher Sanoma by DPG (formerly De Persgroep) and of regional publisher NDC by Mediahuis, publisher of the largest Dutch newspaper De Telegraaf. Both transactions were

cleared without conditions as ACM found that enough choice remains, online and offline, for both advertisers and readers.

Courts continue to deal with important privacy issues, as GDPR has significantly increased awareness of data protection, offensive (e.g. in defamation claims) and defensive, (e.g. when platform providers are required to provide information on infringements).

While the contours of the “journalistic exemption” that seeks to reconcile data protection with freedom of information continue to develop, courts generally succeed in acheiving the right balance between the two.

This year saw two interesting rulings whereby the platform itself (YouTube) had removed content that it had marked as misleading; the courts held that this fell within discretion of the platform and was not in breach of the uploader’s freedom of speech. At the same time, courts continue to carefully view platforms’ reliance on the hosting exemption.

The ECJ’s Constantin Film judgment is expected to have only as limited effect on enforcement of online copyright infringement as Dutch law provides sufficient basis for ordering disclosure of infringers’ contact details.

The right of data subjects to request access to their personal data is becoming increasingly litigious, as private parties are discovering this can be a potentially powerful tool to obtain information.

Written by

Jacqueline Schaap and Paul Kreijger

Visser Schaap & Kreijger

NETHERLANDS

TIER 1

Brinkhof Advocaten’s leading position is derived from its comprehensive coverage of media law, from press law and sports to advertising and entertainment. Remy Chavannes and Pepijn van Ginneken are among experts handling national and international cases that involve strategic commercial and contractual aspects. The team also advices on production and distribution matters and handles litigation.

Kennedy Van der Laan is a distinguished name in the legal market, noted for its specialist advice on IP and media law. Freedom of speech and copyright law are among core focus areas of the firm. Jens van den Brink manages the division and is recognised for his extensive experience acting for national and international broadcasters, newspaper and book publishers, television producers as well as technology companies and network operators.

The media team at Le Poole Bekema has experience spanning decades. The boutique practice represents clients including Telegraaf Media, RTL Nederland and NOS. Joint founders Bas Le Poole and Anne Bekema also advice on intellectual property rights and work closely with law firm Houthoff Buruma on Supreme Court litigation.

A composition of highly experience lawyers, Visser Schaap & Kreijger is a leading firm for media, competition and IP legal advice. Jacqueline Schaap is the firm’s freedom of speech expert who has been involved in pioneering cases regarding the use of hidden cameras and programme listings. Working with Dirk Visser, Ms Schaap advises on film contracts and handles disputes relating to television broadcasting. Joint founder Paul Kreijger advises on regulation, data protection and electronic media.

TIER 2

Bird & Bird’s strength in media is rarely disputed. The practice handles high profile defamation cases involving public figures, assists international entertainment networks with acquisitions of multiple television channels and represents public broadcasters in injunction proceedings. Olaf Trojan co-manages the media division and handles a range of cases involving his core areas of specialisation - misleading advertising and freedom of expression.

Media and intellectual property boutique firm Boekx Advocaten has significant experience litigation on behalf of celebrities and private individuals in cases of defamation, libel and image rights. Established in 2005, the practice has a strong client base that includes newspaper and magazine publishers, internet companies, television networks and advertisers. Founding partners Marc de Boer and Matthijs Kaaks have extensive experience with corporate and commercial transactions in the publishing segment and multimedia organisations involved in cable television.

Hans Bousie and Christiaan Alberdingk Thijm lead the media division at bureau Brandeis. The team is well known for handling complex litigation - local and international. The lawyers of bureau Brandeis have thorough knowledge of media & entertainment law. Hans Bousie is often consulted in complex cases for his outstanding knowledge of the music industry. Christiaan Alberdingk Thijm is both a trusted advisor of major media clients as well as an experienced litigator. The lawyers of bureau Brandeis primarily focus on technology, publishing, music and film - and have notable experience in all fields.

De Brauw Blackstone Westbroek has a distinguished reputation for its sector dedication. Highly regarded by peers, the practice provides advice on a full range of media and entertainment matters. The team, managed by Tobias Cohen Jehoram, has extensive litigation experience nationally and globally. In highlighted work the lawyers assisted Royal Dutch Football Association (KNVB) with a broad range of sports law matters including image rights, television rights and transfer issues.

Lawyers at Hoogenraad & Haak have in-depth knowledge of digital media, film, television, music and social media. The team advises on content-driven collaborations and proceedings for publishers, artists and producers of music.

Van Kaam’s media division is managed by Bertil van Kaam and Remco Klöters, who have a distinguished reputation for successful defence in cases of defamation. As noted by one client, “They are thorough negotiators, very knowledgeable in the field of civil defamation cases and have an excellent track record in these matters.” The firm also successfully represented RTL Nederland in summary injunction proceedings related to a television production.

TIER 3

Baker McKenzie’s assistance in the area of media law includes advertising, market regulation, defamation and unfair competition. Ischa Gobius du Sart works on cases handled by the IP and media practice group, which include multi-jurisdictional transactions.

Entertainment, advertising and copyright feature as core practice areas at De Vos & Partners. The mid-sized practice is involved in test cases involving copyright protection of digital products and the portrait rights of paid footballers in connection with broadcasting images of football matches on television.

Houthoff maintains a strong local position with cable and telecommunications at the core of its focus. With experience advising on regulatory matters, lawyers supervise projects involving The Netherlands Authority for Consumers & Markets (ACM). Thomas de Weerd manages the TMT division which is appointed by national and international publishers, film and television production companies.

Hoyng Rokh Monégier covers new media, entertainment and advertising. Joris Van Manen manages the firm’s media and IP practice in Amsterdam and advises on matters including copyright and regulation. Mr Van Manen leads the team in significant cases connected with television formats, database rights, online betting and unfair competition.

TIER 4

Freshfields Bruckhaus Deringer specialises in all aspects of media, IP and IT. The Amsterdam office, which is managed by Harald Spruit, has a primary focus on corporate and transactional matters. Working on multi-jurisdictional cases, the team assists media clients on issues including regulation, data protection and advertising law.

International firm NautaDutilh has a long-standing presence in the market with offices in neighbouring jurisdictions. Piet Sippens Groenewegen leads the firm’s TMT practice group, providing clients with over two decades of experience of advising and litigating in commercial and regulatory matters.

TIER 5

Alvin Khodabaks manages the Amsterdam TMT division of Clifford Chance, which provides transactional and regulatory advice on mergers and acquisitions, compliance, antitrust and competition. The firm focusses on cross-border work connected with sports, intellectual property, public policy and regulation

CMS focusses on sports and data protection, with a separate division for each. Sports is among the firm’s core areas of expertise. Lawyers assist with sponsoring, portrait rights or transfers. Michiel van Dijk and Robert Jan Dil work on a range of sector-related cases that include privacy and copyright elements.

International media work at Greenberg Traurig includes entertainment, gaming, sports and marketing. The firm’s local emphasis on media incorporates copyright law, contractual aspects and litigation. Radboud Ribbert leads the IP and entertainment group. He specialises in copyright law and is known for his litigation experience. Peter van Langeveld is also highlighted for his work with gaming industry clients.

Stibbe’s TMT group is organised through the firm’s three Benlux offices, providing cross-border coordinated advice. Lawyers include key practitioners Judica Krikke and Erik Valgaeren who advise on matters ranging from broadcasting rights and sector-related tax to regulation and commercial contracting.