John de Mol’s lawyer was his opponent at first

The Association of Dutch Content Producers (NCP) wants clarification about the role of law firm Freshfields Bruckhaus Deringer. De Zuidasadvocaat supports John de Mol’s Talpa Network in the intended merger with RTL, in which competition aspects are crucial. Earlier, the office assisted the NCP in a similar case against Talpa. Freshfields says when asked that it does not see the problem.

The advocate of TV producers is surprised that a Freshfields team is now acting for the media group of De Mol. Freshfields advises Talpa with fourteen lawyers about the intended merger with RTL Nederland, which was announced earlier this month. The joining of forces requires the approval of the competition authority ACM, because together Talpa and RTL may become too large a player on the Dutch television market.

Talpa (operator of TV channels SBS, Net 5 and Veronica) and RTL Nederland (operator of RTL 4, 5, 7 and 8) together attract more than 40 percent of Dutch TV viewers. Merging could harm healthy competition. It is not only producers who find it more difficult against such a large party, advertisers also have fewer options.

Freshfields’ position is remarkable. In 2011, the office assisted the Independent Television Producers (OTP), the legal predecessor of the NCP, when TV producer John de Mol wanted to take an interest in SBS. De Mol, who then supplied TV formats to RTL and SBS with Talpa, already had 26.5 percent in RTL and would receive 33 percent in SBS. The fear of the independent producers was that the maker of Big Brother on The Voice would thereby also gain influence on the programming at RTL and SBS and thus thwart other producers. Competition authority NMa, predecessor of ACM, recognized this threat and prohibited De Mol from participating in RTL and SBS together. De Mol then gave up his interest in RTL.

Also read: What is The Mole? The channel boss prefers to be a producer

Tight idea

Freshfields, an internationally operating law firm, was very involved in that matter as an advisor to the other producers behind the scenes. This is evident from documents that NRC owns. Freshfields lawyer Winfred Knibbeler attended at least two sessions to assist the concerned producers. Knibbeler is now responsible for the competition practice at Freshfields. The documents show that the lawyer was given access to confidential documents during conversations with producers and that he thought about strategies to prevent John de Mol from building up too great a dominant position.

Roel Kooi, then OTP chairman, remembers the matter. “Many producers were terrified of John de Mol. They would become involved with SBS and RTL and could also supply formats themselves. That seemed an unhealthy position to us, sitting on both sides of the table. And many thought it was a scary idea.”

This unease was expressed in consultations between directors of the TV producers Endemol, IDTV, Eyeworks and Tuvalu, at which Knibbeler was also present. He had drawn up a confidential memorandum with a colleague from Freshfields to help the association with the NMa in the fight against Talpa.

During those consultations, a response was devised, among other things, to questions from the regulator about De Mol’s dominant position. The producers were suspicious of his intentions, even if De Mol promised that Talpa would not claim a preferential position. “Formal power has been curtailed, but informal power remains unchanged,” the report said.

Knibbeler helped formulate the answer and accompanied OTP representative Ton F. van Dijk to the NMa in The Hague. Van Dijk was invited to give an oral explanation about the matter.

Confidential information

Van Dijk, now retired, is surprised that Freshfields is acting on behalf of the producer who previously fought it. “I am amazed that this same office is now involved in the collaboration between Talpa and RTL, and I wonder if this is desirable because I shared a lot of confidential information with Freshfields at the time.”

There is also discomfort at the NCP about Freshfields’ dual role. Director Arie Landsmeer: ​​“We are surprised and did not know that this was an issue.”

The representative of independent producers will in any case present the matter to the Amsterdam dean of the Bar Association, Evert-Jan Henrichs. The dean oversees the conduct of lawyers.

When asked, Henrichs does not want to respond substantively to the matter. He does, however, refer to the Code of Conduct for the Legal Profession. Article 15 thereof prescribes, among other things, that an office may not use confidential information of former clients in an identical case against the same client for a counterparty. The rules of conduct also state that a former client must give a lawyer permission to take on a case in which the latter serves a conflict of interest.

Freshfields has not requested that permission from the NCP. Former OTP chairman Kooi thinks the role of Freshfields is ‘sailant’ and ‘very special’. “I’m not a lawyer, but I would never do it. It may be fine through the fine print, but you can’t do it, huh. I would consider that clean.”

Freshfields partner Knibbeler says he sees no objection to acting with his office for John de Mol, despite his personal involvement in the earlier case. He finds the situation incomparable, because in the past ten years other market players have entered the TV market, such as Netflix, Amazon and Disney +.

And what about the confidential information? “That information is under lock and key and plays no role in this case. I have not interfered with this ongoing case, I do not consider it an issue and not newsworthy.”

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