The Court of Cassation has ruled that RTL may no longer mention the name "Jos Nickts". In doing so, it is invoking the "right to be forgotten" - something that the victims from whom Jos Nickts stole 14 million euros and has still not reimbursed have certainly not done. Which names will we be prevented from talking about next?
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The letter from Jos Nickts' lawyer was quicker than the RTL report itself: Even before the review was broadcast to mark the 15th anniversary of the "Jos Nickts" affair, his lawyer asked the TV station to desist. His client, he says, is retired, has served his sentence and had withdrawn from public life. The name of Jos Nickts, who was sentenced in 2007 in the second instance to six years in prison (two of which were suspended) because he stole 14 million euros today in his then position as president of the postmen's union and used it to buy a villa in Mallorca, several luxury cars and a yacht, was therefore not allowed to be mentioned in the programme. He insisted on his right to be forgotten. This is somewhat ironic given that he himself published a book on the case together with Lucien Czuga in 2007 – a gesture that is not generally understood as a desire to be "forgotten".
Back to the RTL report: it was broadcast despite a warning – including names. Jos Nickts, who was apparently not familiar with the Streisand effect, went to court again – this time as the plaintiff. For many Luxembourgers, it was probably the first time they had heard his name.
On Thursday, the Court of Cassation ruled in his favour in the last national instance: RTL is not allowed to broadcast Jos Nickt's name, video footage or new or old photos. As RTL lawyer Me Urbany said in the 100.7 interview, the court has opened Pandora's box with this judgement. How much of Luxembourg's history will be "forgotten" as a result of the judgement? Not just retroactively, but also looking to the future: Because Nickts sent his first letter even before the report was published. If I were the "Bommeleeër", I would already be preparing the letters to all the media organisations today, should my identity – as unlikely as it is – ever be revealed in court. It's been long enough – certainly much longer than 2007 – they deserve to leave all this behind, right?
If you follow the court's reasoning through to its logical conclusion, we are faced with an absurd but legally real question: Which names are next to be off limits? Al Capone? Bernie Madoff? Jérôme Kerviel? Richard Nixon? Even Marc Dutroux? They also committed their offences decades ago. Madoff and Kerviel also served their sentences and would surely have wanted nothing more after prison than for the world to forget their names. Where do we draw the line? At what point is the legitimate public interest in a historic financial scandal outweighed by the private desire to be forgotten? If the sole criterion is that an offence was committed a long time ago and the perpetrator wants peace and quiet, then the right to forget quickly becomes an obligation to falsify history. When should we forget? When do we have to forget? When should journalists be afraid to name names?
"When should we forget? When do we have to forget? When should journalists be afraid to name names?"
Some of the examples may be exaggerated. But unfortunately they are not nearly as far removed from being absurd as common sense would suggest. At what point can Nicolas Sarkozy claim his right to be forgotten? Just like Jos Nickts, he was only able to practise his financial crimes because he was elected to a public post. At what point do we have to forget that Anders Behring Breivik killed 69 people, 33 of them children? He was a private person before his mass murder and would very much like to be again, as he regularly argues unsuccessfully in court.
It should be self-explanatory that no parallels are being drawn here between the seriousness of the crimes. It is also clear that it is not easy to draw the line between private life and freedom of the press. But the judgement raises the question of how far this line should, can and may be pushed in the eyes of the court in the direction of protecting offenders. Because as much as our collective sense of time has been upside down for a few years now, 2007 was not that long ago. And Jos Nickts' victims have still not all been fully compensated financially. Do they also want to forget this chapter?
The fact that the Nickts affair was originally a financial affair also leaves a bitter aftertaste. In Luxembourg, these are still often handled secretly and quietly behind closed doors. Many never come to light due to out-of-court agreements. And even if they do end up in court, the names and companies in the judgements are made unrecognisable. It is one of the reasons why Luxembourg has the national and international reputation that we have and – because of such decisions – rightly cannot get rid of. Because once again, we are making headlines with a court decision that protects a perpetrator of financial crime. Can you, dear reader, name even one person who has been convicted white-collar crime in Luxembourg? Apart from him, whose name must not be mentioned?
It is also a litmus test for the Luxembourg press landscape: the court judgement relates solely to CLT-UFA, i.e. RTL. All other media and private individuals can do as they please – until they too receive a letter from a lawyer who can invoke a convenient precedent. But that would certainly be a good occasion for another article, not about Jos Nickts, but about a totally anonymous former president of the FSFL postmen's union.
Misch Pautsch is President of the Luxembourg Journalists' Association ALJP
