TELEVISION LAW IN THE DUTCH CARIBBEAN
Freedom of expression
The Antilliaanse Televisie Maatschappij N.V., a Curacao-based television broadcasting company, holds a license under the Television Act (‘Televisielandsverordening’). Its subsidiary TDS N.V. (“TDS”) holds a license for the operation of a cable TV network on Curacao.
Curacao Cable Television N.V. (“CCT”) has contested the exclusive rights of TDS. CCT has claimed that the Netherlands Antilles must grant a license for the operation of a cable television network in Curacao. It argued that granting TDS exclusive rights was a violation of the fundamental right of freedom of information and information gathering as laid down in Article 10 of the European Convention for Protection of Human Rights. CCT’s claim was denied by both the Court in First Instance and the Court of Appeal of the Netherlands Antilles and Aruba. In the Lentia case of the European Court of Justice (EHR on 24 November 1993, Netherlands Jurisprudence 1994, 559) it was decided that a monopoly could result in an infringement of the basic human right of freedom of expression.
In its decision of 20 September 2002, the Dutch Supreme Court overturned the Court of Appeal. According to the Supreme Court, the Netherlands Antilles cannot take the position that the exclusive rights of TDS are justified by a ‘pressing need’, as defined by the European Court of Justice in the Lentia case. The Supreme Court argues that if competition results in TDS becoming financially less sound and this affects the public interest, this alone does not justify the refusal to grant a license to a competitor. In other words: a monopoly position is only permissible in case of absolute necessity.
In May 2007, the Netherlands Antilles government put a moratorium on the issuance of new radio and television licenses for open broadcasting until a new media law has been put in place. Reason: the enormous number of stations has saturated the market.
Karel Frielink
Curacao-based Attorney (lawyer) / Partner
