Defamation and calumny: how do you prove it and what steps can you take?

Someone is spreading lies about you. Online, in the media, or within your own industry. Your reputation is at stake and you want to act. Or you are the one being accused of defamation or calumny and you are wondering how serious that is. In both situations a lawyer helps you get a clear picture and take the right steps.

At Liaise we regularly assist clients faced with damaging statements. Sometimes it is an unfounded accusation on social media, sometimes an article in a national newspaper or a current affairs programme that twists the facts. What we see time and again is that the consequences run deeper than people expected. Clients drop away, collaborations break down, or it reaches into your private life in ways you had not foreseen.

What is the difference between defamation and calumny?

Dutch criminal law draws a distinction here that English law does not. With defamation (smaad) someone deliberately spreads information about another person that is true but damaging. With calumny (laster) someone knowingly spreads damaging information that is untrue. The difference between the two comes down to whether the allegation is correct (defamation) or incorrect (calumny).

The fact that something is true does not give anyone the right to fling it onto the internet or make it public in some other way. Defamation arises where someone deliberately puts an accusation or a particular fact into the world with the intention of damaging another person’s honour and reputation.

Think of accusations of committing criminal offences or of acting unlawfully. Even if you have committed a criminal offence or acted unlawfully, that still does not mean everyone is free to say or write whatever they like about it in public.

With calumny the perpetrator goes a step further and puts out an accusation or a particular fact intending to damage someone’s honour, while knowing full well that it is nonsense.

This might be, for example, a false review on Google.

Defamation, calumny and insult explained

Alongside defamation and calumny there is also the offence of insult (belediging). It matters that these three concepts are not confused, because they carry different legal consequences.

Insult arises where someone deliberately damages another person’s honour or reputation without naming a concrete fact or accusation. It usually involves abuse, hurtful remarks or humiliating statements. Think of calling someone a “fraud”, an “idiot” or a “criminal” without citing any concrete facts.

The key difference with defamation and calumny is therefore that insult involves no concrete accusation or fact. With defamation and calumny a specific fact or accusation is in fact expressed.

Legal steps against defamation and calumny

1. Reporting the matter to the police

Where there is defamation or calumny, you can report it to the police. The advantage of a report is that it is made anonymously. Nobody need know that you are the person who made it.

The police will then investigate the facts and can pass the case to the Public Prosecution Service. That service then decides whether a criminal prosecution follows.

Worth knowing is that both defamation and calumny are complaint offences. This means the Public Prosecution Service can only prosecute if you, as the victim, formally make a complaint. Without your complaint no criminal prosecution can take place.

2. Starting civil proceedings

Alongside the criminal route you can also act against defamation and calumny through the civil courts. You hold the perpetrator liable for the harm you have suffered, whether that is reputational harm or the loss of clients and commissions.

In civil law defamation and calumny fall under unlawful act (Article 6:162 of the Dutch Civil Code). You do not have to prove that the other party acted deliberately. It is enough to show that the statements are unlawful and that you suffered harm as a result.

Whether a statement is unlawful is assessed by the court in the light of all the circumstances. In doing so it weighs the right to freedom of expression (Article 10 ECHR) against the right to protection of private life and reputation (Article 8 ECHR). Not every negative statement is unlawful straight away. Context, tone and the question whether facts or opinions are at issue all play a part.

Most clients opt for the civil route. It offers more control, since you set the pace and the level of effort rather than the Public Prosecution Service. Sometimes we combine the civil approach with a criminal complaint. What works best depends on what you want to achieve, how strong your evidence is and how serious the situation is.

Before you go to court there are (legal) steps that need to be taken

Step 1: Gather your evidence of defamation and calumny

It matters that you gather as much evidence as possible of the defamatory or calumnious statements. The following must be established:

1. The concrete accusation or fact that was expressed.
2. Evidence that the statement was made deliberately (with calumny: that the perpetrator knew it was untrue).
3. That the statement was made public or told to a third party.
4. That your honour or reputation was damaged by it.
5. That you suffered harm (in civil proceedings).

You can then gather that evidence in various ways. Examples are the following:

• Screenshots: take screenshots of posts on social media, websites, forums or in WhatsApp groups. Make sure the date, time and sender are clearly visible.

• Saving URLs: store the exact web links where the statements appear.

  E-mails and messages: keep all digital communication containing the defamatory or calumnious statements.

• Calculating your loss: gather evidence of the harm you have suffered, such as lost commissions, clients or turnover.

A media law lawyer helps you gather and assess the evidence. Act quickly, because online content can be removed or altered before you know it.

Step 2: Sending a letter of claim: what should it contain?

Once the evidence has been gathered and secured, a letter of claim must be sent. In such a letter you set out which statements you regard as defamation or calumny and why. You then state what you are claiming as a result, for example:

• Rectification: the perpetrator must publicly retract or correct the calumnious or defamatory statements
• Damages: compensation for material and non-material harm suffered, which you can read more about later in this article.
• Prohibition: a court order not to repeat the statements or leave them online
• Removal: removal of defamatory or calumnious content from websites or social media

We can help you draw up a letter of claim.

Step 3: Summary proceedings in defamation and calumny cases

If the person you have written to does not comply with the demands set out in the letter of claim, the next step is to go to court. This is how you then try to enforce those demands after all.

Because defamation and calumny cases are almost always urgent, in that the statement needs to be stopped or taken offline as quickly as possible, summary proceedings are often started. This is an accelerated procedure in which the court rules within a few weeks. Summary proceedings can be used to force removal or a publication ban quickly and to claim an advance on your damages.

Summary proceedings are, unfortunately, expensive. Depending on what the case involves, legal proceedings soon cost between €8,000 and €20,000. If you lose the case you have to pay a few thousand euros to the other party.

If you win, the other party has to pay you a few thousand euros. Unfortunately a full costs order is not made in cases of this kind.

We have a great deal of experience in conducting summary proceedings of this sort.

Reputational harm: when can you claim damages?

Reputational harm is the loss you suffer through damage to your good name. This can be material loss (such as lost turnover or lost income) as well as non-material loss (such as psychological suffering and damage to honour).

Proving material reputational harm

Material loss concerns concrete financial consequences. Think of clients who walk away after negative coverage, commissions that are withdrawn, or a job application that fails because a prospective employer finds the damaging reports. Lost profit and additional costs of reputation repair also fall under this heading.

To have material loss compensated you must actually be able to demonstrate it. This means being able to show what concrete financial consequences the defamation or calumny had. So, for example, clients who terminated their contract following the coverage, or leads that fell through because of it. The more specifically you can substantiate and evidence this, the stronger the claim.

Non-material damages in defamation cases

Non-material loss concerns the suffering caused by damage to honour and reputation. The court can award compensation for this even where there is no concrete financial loss. The sums Dutch courts award for non-material loss are usually modest and almost never exceed a few thousand euros. These are therefore far lower amounts than a court in the United States would award, for instance.

Based on your situation we can estimate what you are able to claim.

Conclusion

Defamation and calumny are serious wrongs that can badly damage a person’s reputation and career. You have several legal weapons to defend yourself, in criminal law as well as in civil law.

Do not wait too long to gather evidence, since online material can disappear, and to call in legal help if you need it. With the right approach you can restore your good name and possibly obtain damages.

Are you faced with defamation or calumny and would you like to know what steps you can take? Get in contact with one of our experienced media law lawyers, who can advise you on the best approach in your specific situation.