What are the rules on freedom of expression?

You may express your opinion without prior permission, but you are responsible afterwards for what you say. That follows from Article 7 of the Dutch Constitution and Article 10 of the European Convention on Human Rights (ECHR). If someone suffers harm, the court weighs your freedom of expression against their right to honour, reputation and private life. The factors that count are the seriousness of the allegation, the factual basis for it, the public interest involved, the wording chosen and the reach of the statement.

Is freedom of expression an absolute right?

No. Article 10(2) ECHR allows restrictions, provided they are prescribed by law and necessary in a democratic society. Article 7 of the Dutch Constitution likewise ties the freedom expressly to everyone’s responsibility under the law. There is no hierarchy between freedom of expression and the right to protection of honour and reputation. The court decides case by case which right carries more weight in the specific circumstances.

What does freedom of expression not cover?

Under criminal law, defamation and slander and insult fall outside it, as do incitement to hatred or discrimination, sedition and threats. Under civil law a statement can be unlawful where there is insufficient factual basis, where the wording is needlessly hurtful, or where the harm is out of proportion to the interest served by publication. You may also be bound contractually, for instance by a confidentiality clause.

What does the law say about freedom of expression?

Article 7 of the Dutch Constitution prohibits censorship in advance and places responsibility after the fact with the person making the statement. Article 10 ECHR protects the receiving and imparting of information and ideas, even where these offend, shock or disturb. Because Dutch courts may not review legislation against the Constitution, Article 10 ECHR does most of the work in practice. The limits are set out in the Dutch Criminal Code and in Article 6:162 of the Dutch Civil Code.

Freedom of expression lawyer

You said or wrote something. A critical post about a former employer, a review, a broadcast, an interview with a journalist. And now a cease-and-desist letter has landed. Take it offline within 24 hours, rectify, and if not, interim injunction proceedings will follow.

The question then is not whether you are allowed to hold an opinion. You are. The question is whether your statement stays within the limits the law places on that freedom. You will rarely get that right on instinct.

We act for the party that has spoken out. Journalists, creators, publishers, businesses and private individuals called to account for what they have put into the world. And people who want to know in advance how far they can go.

Received a cease-and-desist letter or a writ of summons? Call 020 675 88 21 or get in contact with Merel Teunissen. With such a letter the period for responding is often a few days, sometimes a few hours.

What is freedom of expression?

Freedom of expression is the right to express what you think and believe without the government granting permission in advance. In the Netherlands this is set out in Article 7 of the Constitution. That article prohibits prior censorship and immediately adds a qualification: everyone remains answerable under the law. After the event, then, you can certainly be called to account.

In practice the court assesses matters primarily against Article 10 ECHR. That also protects statements which offend, shock or disturb. The European Court of Human Rights counted this among the essentials of a democratic society as long ago as 1976 (Handyside v United Kingdom). Restriction is permitted, but only where it is prescribed by law and necessary in a democratic society.

When is freedom of expression restricted?

There is no list of forbidden words. The court weighs your right to free expression against the other party’s right to honour, reputation and private life (Article 8 ECHR). Neither right wins out in advance.

What tips the balance are the circumstances. How grave is the accusation and what did you base it on? Was it a statement of fact or a value judgement? Was there a matter of public concern that deserved attention? How wide was the reach? And could you have said the same thing in a less damaging way?

Accused of criminal defamation: what is your defence?

Article 261 of the Dutch Criminal Code makes it an offence to damage someone’s honour or reputation by charging them with a particular fact, with the apparent aim of giving that publicity.

Two things matter when this is brought against you. A vague characterisation is not a particular fact, because a concrete act must be alleged. The third paragraph also contains an exception for anyone who could assume in good faith that the assertion was correct and that the public interest required the statement. This defence of truth, the exceptio veritatis, forms the core of the defence in many cases.

When was the allegation made in the knowledge that it was untrue?

Article 262 of the Dutch Criminal Code covers criminal defamation made in the knowledge that the allegation is untrue. It is the graver charge, and that knowledge has to be proved as well.

Cease-and-desist letters often put the accusation more loosely than the statute allows. If you had doubts about the accuracy, or relied on sources that looked reliable at the time, that graver charge does not stand. How the two offences relate to one another is set out on our page about defamation and slander.

Insult (belediging): where does criticism cross the line?

With belediging, the Dutch offence of insult (Article 266 of the Dutch Criminal Code), which has no direct equivalent in English criminal law, that concrete fact is precisely what is absent. It covers abuse and hurtful characterisations.

The second paragraph contains an exception that is often passed over. Statements intended to give an opinion on the conduct of public affairs are not criminal insult, unless the form makes clear that your aim was to wound someone. Sharp criticism of a director or a politician regularly falls within this. The tone then determines whether you stay on the right side of the line.

A civil claim over an unlawful statement

Most cases play out not in criminal law but in civil law. The other party argues that your statement is unlawful (Article 6:162 of the Dutch Civil Code) and claims removal, rectification, an injunction to restrain publication or damages. Usually in interim injunction proceedings, so within a few weeks.

That is a different test. Intent does not have to be proved. The question is whether you crossed the line of what is socially acceptable. Even where no criminal offence has been committed, you can still lose a civil case. Conversely, a publication that lands hard is not for that reason an unlawful publication.

What can a lawyer do for you?

Responding to a cease-and-desist letter or a writ of summons

A cease-and-desist letter states a demand, not a judgment. We first assess whether the demands hold up legally, because they are almost always framed more widely than what a court would grant. We then determine what you do and do not concede. Sometimes meeting the other party part way is sensible, for instance by correcting a factual inaccuracy without retracting the substance. Sometimes a substantive rejection is the better move.

What you write in that first letter will be on the table in any subsequent interim injunction proceedings. Clumsily worded regret works against you there.

Knowing where the line is before you publish

Where a conflict is looming, checking in advance is cheaper than litigating afterwards. We assess the factual basis, the wording and the question whether the right of reply is needed. With statements made within an employment relationship, what you have agreed about confidentiality also comes into play, as does whether your situation falls under whistleblower protection.

For editorial teams and creators we also do this as a matter of routine, shortly before publication or broadcast.

Mounting a defence based on freedom of expression

In proceedings we build the defence around a few core points. The factual basis you had at the time of publication. The distinction between a statement of fact and a value judgement. The public interest your statement served. And the exceptio veritatis, where it applies.

Alongside that we test the claim itself. Courts are reluctant to grant an injunction to restrain publication before anything has appeared, given the prohibition on censorship in Article 7 of the Constitution. And the reputational harm the other party claims is in practice often a good deal higher than what a court awards.

Would you like to know how strong your position is? Get in contact or call 020 675 88 21 for an initial assessment.