LJN BP3480, Breda District Court, 228794 KG ZA 10-763

Date of decision: 02.08.2011

Publication date: 08/02/2011

Jurisdiction: Civil Other

Type of procedure: Provisional

Case Numbers: 228794 KG ZA 10-763

Sector view: Relief Judge

Inhoudsindicatie:

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Ruling

verdict
COURT OF BREDA

Civil law


case number / docket number: 228794 / KG ZA 10-763

Interim order of February 8, 2011

In the case of

the foreign company
DAHABSHIIL TRANSFER SERVICES LIMITED,
established in London,
Plaintiff,
attorney DP Joosten

against

[Defendant]
residing at [home]
defendant,
attorney M. Koedooder.


The parties will hereafter Dahabshiil and [defendant] called.

1. The procedure
1.1. The course of the proceeding consists of:
- The summons of 28 December 2010 with exhibits numbered 1 who had 12;
- The letter of 21 January 2011 on the part of Dahabshiil with exhibits numbered 13 through 23;
- The fax of 24 January 2011 on the part of Dahabshiil with Annex;
- The email of 24 January 2011 on the part of [defendant] with exhibits numbered 1 to 24;
- The hearing on January 25, 2011;
- The written arguments of Dahabshiil;
- The written arguments of [defendant].

1.2. During treatment of the hearing, Mr. Koedooder objected to by Mr. Joosten e-mail of January 25, 2011 submissions. The judge ruled that the documents are not 24 hours before the meeting and have submitted these documents, given the requirements of due process, are excluded.

1.3. Finally verdict determined.

2. The dispute
2.1. Dahabshiil progresses, enforceable, [defendant] to pay:
i) expressions that a link between Dahabshiil and the financing of terrorist organizations immediately to omit;
ii) expressions that a link between Dahabshiil and inciting criminal acts and rewarding criminal acts immediately to omit;
iii) other unlawful acts on Dahabshiil immediately to omit;
iv) within two days of notification of its decision would be the operators of the websites, sending copy of its decision would be, to submit a written request to remove and keep away from the at http://www . [site X]. com and http://www. [Y site]. com published articles with the same copy of the written request to the lawyer of Dahabshiil;
v) the attached correction in English and Somali language at http://www. [site X]. com and http://www. [Y site]. com and publish continuously 24 hours a day during each calendar a
period of 30 calendar days after notification of its decision would be the first visible page, with no pop-ups and without any commentary on the Internet or in print media, surrounded by a black border, in black letters, font Arial point size 12, on a white background and Dahabshiil thereof on each calendar day during the said period by fax [number] proof of posting (digital screens or paper copies) to provide the following text:

"CORRECTION ON DEHABSHIIL"
My name is [defendant], born on [date] domiciled at [address]. In several publications on the website http://www. [Site X]. Com and http://www. [Y site]. Com Dahabshiil I deliberately associated with the financing of terrorist organizations, or to provoke criminal offenses through a reward thereof.

I'm for the above items on the website http://www. [Site X]. Com and http://www. [Y site]. Com condemned by order of the judge of the civil law of the Court in Breda, Netherlands , zaak-/rolnummer 228794 / KGZA 10-763. For the other accusations against Dahabshiil on the aforementioned websites I have no proof. I am condemned to the award of this correction.

Mr. [defendant] living in ([postcode]) [address] to [address]
[SIGNATURE]

at least one by the judge to set text;
vi) to within two days of notification of its decision would be to issue a Dahabshiil by [defendant] to sign rectifucatiebrief with the following:

"To whom it may concern"
The undersigned, Mr. [defendant] born on [date], living in ([postcode]) [address] to [address], hereby declare as follows:

In my publications on the website http://www. [Site X]. Com and http://www. [Y site]. Com Dahabshiil 2010 I have intentionally been associated with crime by falsely accusing her out they commit criminal errors such as the financing of terrorism, at least provokes offenses, including incitement to murder a Somali singer. I am for those publications on the websites of these condemned by order of the judge of the civil law of the Court in Breda, Netherlands, zaak-/rolnummer 228794 / KGZA 10-763. For the other accusations against Dahabshiil in my articles I have no proof. I hereby rectify unlawful publications at http://www. [Site X]. Com and http://www. [Y site]. Com and I Dahabshiil, at least her lawyers irrevocably consent to publication and dissemination of this correction.

The Right Services, Breda has condemned me to sign this letter and Dahabshiil issue.

Mr. [defendant] living in ([postcode]) [address] to [address]
[SIGNATURE]

at least one by the judge to set text;
vii) the advanced sub i to vi under penalty of forfeiture of Dahabshiil to a penalty payment of EUR 10,000 - for each violation, plus EUR 1.000, - for each day or part of one day that a violation continues;
viii) the extra costs, which are estimated at an amount of EUR 3,500, - at least according to Recommendation II of II report of the Dutch Association for the Judiciary inzaka extrajudicial costs (NVvR) at two points of the applicable liquidation rate and therefore a total of EUR 1,632, - with statutory interest thereon from the date of the summons;
ix) the costs of this suit, based primarily on the Dahabshiil actually incurred and in good to EUR 7,000 - to budget costs, alternative, under the liquidation proceedings, and
x) the costs of the proceedings Dahabshiil meet within seven days after disposition of cases under the provision that if the legal costs are not paid within this period, from about the eighth day statutory interest.

2.2. [Defendant] argues defense.

2.3. The positions of parties below, where relevant, in more detail.

3. The assessment
3.1. Based on the lack or insufficiency of disputed claims and the submitted works are based on the following facts:
- Dahabshiil is a financial organization with 24,000 locations worldwide. Dahabshiil headquarters is located in the United Kingdom. Dahabshiil makes use of an intermediary in the Netherlands, called [agent]. The clientele consists mainly of Dahabshiil Somalis.
- [Defendant] in 2007 fled from Somalia and remains as a recognized refugee in the Netherlands.
- [Defendant] is a journalist and the www. [Site X]. Com owned.
- By letter dated October 8, 2010 counsel for Dahabshiil [defendant] and webhosts summoned to four articles of the websites. [Defendant] and has not complied with this summons.

3.2. Dahabshiil submit its claim to wrongful acts of [defendant] is based. It claims - summary - on the website http://www. [Site X]. Com and http://www. [Y site]. Com articles wrongful allegations and suspicions about her were posted. [Defendant] is registrant or the administrative or technical contact of these websites and therefore responsible for the publication of articles. On the aforementioned website publishes [defendant] his own articles. The content of the articles presented as news is incorrect, false and based on no facts. The articles contain serious allegations of serious words addressed to Dahabshiil, which nowhere else on the Internet or in international professional media can be found. [Defendant] acts contrary to the principles of journalism. The articles of Dahabshiil disrepute, so it has an interest in correcting.

3. 3. [Defendant] retorts - briefly - to: the Dutch court has no jurisdiction in this case is increasing, not subject to Dutch law. The urgent interest is missing and the case is too complex for treatment in summary proceedings. [Defendant] denies that it unlawfully. The Dahabshiil cited articles by him or not, or not published on its website, or not available at the specified site. The website http://www. [Y site]. Com is not owned by [defendant], but of a private media company in Mogadishu.[Defendant] requires, along with 17 other journalists, articles [site Y]. [Defendant] is technical manager of http://www. [Y site]. Com, because he was the only journalist outside Africa and it is therefore better for everyone's safety.

3.4. Article 2 of the Code states that in cases initiated by summons to be the Dutch court has jurisdiction if the defendant is domiciled in the Netherlands or habitual residence. This is also the main rule in the system of the Brussels Regulation (Article 2 EEX), which regulation [defendant] to include appeals. [Defendant] lived in [place], so that the Dutch court has jurisdiction.

3.5. The clientele consists mainly of Dahabshiil Somalis. The target audience of the we