Defamation and slander: 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 slander 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 slander?

Dutch criminal law draws a distinction here that English law does not. Smaad is criminal defamation: someone alleges a particular fact about another person in order to damage that person’s honour or reputation, and does so publicly. Laster is the same offence committed by someone who knows the allegation is untrue. The difference between the two therefore lies in that knowledge, not in whether the allegation happens to be true.

The fact that something is true does not, in itself, give anyone the right to put it out on the internet or make it public in some other way. Under Dutch law, truth is a defence only in limited circumstances, where you could reasonably assume the allegation was correct and the public interest required it to be made.

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 slander the perpetrator goes a step further and makes the allegation while knowing full well that it is untrue. A fabricated review on Google is a familiar example.

Defamation, slander and insult explained

Alongside defamation and slander there is the separate offence of insult (belediging), a Dutch criminal offence with no direct equivalent in English law. It is important not to confuse the three, because the legal consequences differ.

Insult arises where someone deliberately damages another person’s honour or reputation without alleging any concrete fact. 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 is therefore that insult involves no concrete accusation or fact, whereas defamation and slander both require a specific fact to be alleged.

Legal steps against defamation and slander

1. Reporting the matter to the police

Where there is defamation or slander, you can report the matter to the police. Reporting costs nothing, but bear in mind that it is not anonymous. Both offences are complaint offences, which means the Public Prosecution Service can prosecute only if you, as the victim, formally make a complaint. That complaint is part of the file, so the suspect will normally learn who brought it.

The police will then investigate the facts and can pass the case to the Public Prosecution Service. That service decides for itself whether a prosecution follows, and criminal proceedings will not get your material removed or your loss compensated.

2. Starting civil proceedings

Alongside the criminal route you can also act against defamation and slander 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 slander 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. 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 decide the pace and how far to press the case 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 slander

Gather as much evidence as you can of the damaging statements. The following must be established:

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

There are various ways of gathering that evidence:

• 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 damaging 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 cease-and-desist letter: what should it contain?

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

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

We can help you draw up a cease-and-desist letter.

Step 3: Interim injunction proceedings in defamation and slander cases

If the person you have written to does not comply with the demands set out in the cease-and-desist letter, the next step is to go to court and enforce those demands.

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

Such proceedings are, unfortunately, expensive. Depending on what the case involves, legal proceedings soon cost between €5,000 and €20,000 excluding VAT. 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. A full costs order is not made in cases of this kind.

We have a great deal of experience in conducting interim injunction 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 the additional costs of repairing your reputation also fall under this heading.

To have material loss compensated you must actually be able to demonstrate it. This means showing what concrete financial consequences the defamation or slander 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 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 slander are serious wrongs that can badly damage a person’s reputation and career. You have several legal remedies open to you, in criminal law as well as in civil law.

Do not wait too long to gather evidence, since online material can disappear, and 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 slander 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.