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Terumo loses appeal against Dutch TV broadcaster

Two anonymous whistleblowers informed the media about certain serious flaws with respect to Terumo’s syringes, stents and catheters. In the first broadcast of the Dutch TV show “EenVandaag” by AVROTROS it is stated that the syringes can contain (liquid) glue that might contaminate the medicine and the patient.

In the second broadcast the quality control of stents and catheters is under attack.  The Dutch The Health Care Inspectorate (IGZ) concluded shortly after the media reports that the health risk is negligible, based on research by the National Institute for Public Health and the Environment (RIVM). In first instance, the court ruled that the Dutch TV broadcaster AVROTROS acted unlawful. On 23 June 2020, the Court of Appeal performs the same balancing act as the court in first instance, weighing on the one hand economic interests of Terumo and on the other hand freedom of speech. The outcome was however opposite. What happened?

The Court of Appeal first, very factually, assesses whether the statements in the two media reports are supported by the facts. Although the reports contain some inaccuracies, the court of appeal concludes that most of the statements are supported by the available facts. Thereafter the Court of Appeal assesses if AVROTROS breached the principle that both parties should be heard. That is not the case, because, amongst others, AVROTROS informed Terumo about the questions it wanted to ask in the interview and disclosed the main allegations of the whistleblower. AVROTROS was not obliged to share all documents and film footages with Terumo, nor was AVROTROS obliged to share a complete written report of the whistleblower’s statements. Further, Terumo could not expect that the questions it would face in the interview would be limited to the pre-notified questions. Those questions only create a framework for the interview and AVROTROS did not ask questions outside that framework. According to the appeal court Terumo had a fair chance to respond to the questions and AVROTROS also included that response in the report. Therefore, the coverage is well-balanced.

The Court of Appeal recognizes the negative consequences of the reports for Terumo, but rules that the interest of the public to be informed about public health topics prevails in this case. There was sufficient reasonable cause to make the reports and the creation and presentation thereof was carefully performed.

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