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 letter of claim has landed. Take it offline within 24 hours, rectify, and if not, summary 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, makers, 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 letter of claim or a writ of summons? Call 020 675 88 21 or get in contact with Merel Teunissen. With a letter of claim 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 reservation, namely everyone’s responsibility 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 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 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. Furthermore, the third paragraph 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 is it calumny and when is it not?
Calumny (Article 262 of the Dutch Criminal Code) is defamation where you knew the accusation was untrue. It is the graver charge, and that knowledge has to be proved as well.
In letters of claim the word is used more loosely than the statute permits. If you had doubts about the accuracy, or relied on sources that looked reliable at the time, calumny does not come into it. How the two concepts relate to one another is set out on our page about defamation and calumny.
Insult: where is the line with criticism?
With insult (Article 266 of the Dutch Criminal Code) that concrete fact is precisely what is absent. It concerns 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, a publication ban or damages. Usually in summary 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 proper. Even where nothing criminal has happened you can come off worst here. Conversely, a publication that lands hard is not for that reason an unlawful publication.
What can a lawyer do for you?
Responding to a letter of claim or a writ of summons
A letter of claim is a claim, 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 summary 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 makers 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 axes. The factual basis you had at the moment of publishing. 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 impose preventive publication bans, 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.
