Unlawful publication

A journalist calls for a comment. An article appears online that is not accurate. Or a social media post damages your reputation while you look on, powerless.

An unlawful publication can cause enormous harm to your career, your business or your private life. Especially now that posts go viral within minutes and the internet forgets little. Whether it concerns an unlawful press publication in a newspaper or a television programme, or damaging posts on social media. As unlawful publication lawyers we help clients to stop damaging coverage, to demand rectification and to conduct summary proceedings to get publications taken offline.

Get in contact with us straight away or call 020 675 88 21 if you are the subject of a publication. It is important to act quickly, both where publications are imminent and where they have already been made public.

What is an unlawful publication?

A publication is unlawful when it infringes your honour and reputation or your private life. This may be the case where the accusations are untrue, where the accusation is framed in an unnecessarily hostile way, or where the harm is out of proportion to the public interest.

But when is that line crossed? Freedom of expression is a fundamental right, but it has statutory limits. Here the court weighs two fundamental rights against each other: freedom of expression (Article 10 ECHR) versus the right to privacy and protection of your name and reputation (Article 8 ECHR). Both rights carry equal weight.

Important legal considerations in an unlawful publication

When assessing whether a publication is unlawful, the court takes the following factors into account:

• The seriousness of the accusations and the consequences for the person concerned.
  The graver the allegations, the more careful the reporting must be. The greater the impact on someone’s name and reputation, the higher the requirements placed on the journalist.
• The public interest.
  Does the publication expose a matter of concern that the public needs to know about? If so, that weighs in favour of freedom of expression.
• The factual basis of the statements.
  A publication must be sufficiently supported by facts. Mere rumours or suggestions are not enough.
• The manner of presentation: facts or opinions.
  Facts must be verifiable. Opinions are permissible, provided they are clearly recognisable as such and placed in context.
• Alternatives to publication.
  Could the aim have been achieved in a less harmful way, for example through an internal report?
• The likelihood that the information would have come out anyway.
  If a report would probably have become public even without this publication, that is taken into account.
• Careful journalism requires the right of reply.
  The person concerned must be able to respond to accusations before anything is published. With serious suspicions this is all the more important. If a journalist skips this step, it weighs heavily in the assessment of whether the publication is unlawful.

What is an unlawful press publication?

Professional media, such as newspapers, magazines, television programmes and online news sites, are required to act with care. Checking sources, applying the right of reply, and not making statements that harm someone’s honour, reputation or private life without good reason.

If that nevertheless happens, we speak of an unlawful press publication.

The difference with an angry reaction on social media is considerable. From journalists and editors you may expect a far higher standard of care than from a random internet user. That often makes your legal position, as the person affected by an unlawful press publication, considerably stronger.

What can you do about an unlawful publication?

There are various legal routes to have a publication removed or prevented. The best approach depends on your specific situation and on whether the publication is in fact unlawful.

1. Legal guidance with the right of reply

If an article or broadcast is still being prepared, we can make sure that you are given a proper opportunity to exercise your right of reply. As the person concerned you must be given the chance to respond to accusations before publication. As media law lawyers we guide clients in responding carefully to press questions, keeping an eye on both reputation and legal position. With unlawful press publications, the right of reply is one of the weightiest considerations for the court.

2. Sending a letter of claim in the event of an unlawful publication

Has an article appeared that is inaccurate, or was there a lack of care in how it came about? Then a letter of claim is usually the first step.

Start at the source: contact the journalist, the editors, the website administrator or the person behind the social media post. Sometimes a direct and polite request is enough, especially where there are factual errors in the publication or where the right of reply was skipped. But if the other party does not respond or is unwilling to cooperate? Then a formal letter of claim from a lawyer often does make the difference.

What is a letter of claim?

A letter of claim is a formal written notice in which you require the author or publisher to remove and/or rectify the publication. In a letter of claim you set out briefly that and why the publication is unlawful, and you make clear that you are considering going to court if the demands set out in the letter are not met.

What does a letter of claim contain?

A letter of claim in an unlawful publication case sets out, in any event, why the publication is unlawful. It then states which right is thereby infringed, such as the right to honour and reputation or the right to privacy. Where a standard of careful journalism has been breached, such as the right of reply, this too is stated in the letter of claim.

At the end of the letter come the specific demands. In an unlawful publication case these usually concern:

• Removing the publication and keeping it removed;
• Placing a rectification (specifying where and for how long);
• A claim for damages;
• A period within which this must be complied with.

For taking a publication offline, the period is often a few hours.

The letter of claim ends with the consequences if the demands are not met. In most cases that is the start of summary proceedings.

3. Removal via the platform (notice and take-down)

Is the publication on social media, a forum or a news platform? Then you can report it to the platform itself. Facebook, Instagram, X, LinkedIn and YouTube all have procedures for content that breaches their terms, think of privacy infringement, portrait rights or defamation.

Platforms remove content where the breach is clear. The drawback is that it is not a court but the platform itself that makes the assessment. Complex cases are therefore regularly refused. Does the platform fail to respond adequately? Then legal steps are possible, both against the person who published and against the platform.

With anonymous publications the notice-and-take-down procedure is sometimes the only option. You do not need to know the identity of the author in order to request removal. We help you draw up and submit a removal request that stands a chance of success.

4. Removal from Google (right to be forgotten)

Sometimes the publication stays online, but you want to prevent everyone from stumbling straight onto it. That is possible. The GDPR gives you the right to be forgotten: you can ask Google to remove search results containing your name from the list of results.

Google looks at the circumstances of each request. Is the information incorrect, out of date or no longer relevant? Is there a public interest? Do you hold a public role? These are all factors that are weighed. Bear in mind that Google refuses around 60% of requests and that the publication itself stays online, even if the search result disappears. Other search engines such as Bing have comparable procedures.

5. Summary proceedings in the event of an unlawful publication

If letters of claim and removal requests do not help? Then legal proceedings are the next step, by way of summary proceedings or proceedings on the merits.

Summary proceedings are an urgent procedure before the court. With unlawful publications, time plays a major role: the longer damaging content stays online, the greater the reputational harm.

The advantage of starting summary proceedings is that a court assesses, in a relatively short time, whether the publication is unlawful. It can then order the person who posted the content to remove it and keep it removed. The court can attach a penalty payment to this. The drawback: it costs time and money, and litigation can actually generate extra attention.

What can you claim in summary proceedings?

In summary proceedings over an unlawful publication you can bring various claims:

• Removal: The court can order the platform or the person who published to take the article, broadcast or social media post offline.
• Rectification: A compelled correction. The person who published must publicly acknowledge that the earlier reporting was incorrect or careless. This is set out in Article 6:167 of the Dutch Civil Code.
• Publication ban: A ban on further dissemination or repetition of the unlawful statements.
• Penalty payment: To enforce compliance, the court can impose a penalty payment. It applies for each day that the judgment is not complied with.
• Advance on damages: In some cases you can already claim an advance on the damages in summary proceedings.

How do summary proceedings unfold?

After the writ of summons has been served, a hearing usually follows within two to six weeks. Both parties explain their position. The court then gives judgment within two weeks. In very urgent cases this can be quicker still. That may be the case, for example, with an imminent television broadcast. In that situation the court can give judgment within a matter of hours.

The judgment in summary proceedings is an interim measure. In practice parties often accept it, especially where the court rules clearly that the publication is unlawful. The other party can, however, still appeal or start proceedings on the merits.

Proceedings on the merits

Alongside summary proceedings you can also start proceedings on the merits. These take longer, on average one to two years, but the court carries out a thorough examination and gives a final ruling. This is the route to take in complex cases or where you want to claim higher damages.

Our approach

We have extensive experience with summary proceedings over unlawful publications. Acting fast is no exception: within a few days a writ of summons is ready. During the proceedings we assist you legally, but outside them too. Think of coordinating with a communications adviser, drawing up a press release or providing support with the personal impact a publication can have.

6. Reporting criminal defamation or calumny

Does a publication qualify as criminal defamation or calumny? Then you can report it to the police. The Public Prosecution Service then decides whether to prosecute, and that is precisely where the difficulty lies. As a victim you have little influence over what follows and the burden of proof is high. With calumny you must also show that the perpetrator knew the accusation was untrue.

Most people therefore choose the civil route. You keep control yourself and usually see results more quickly. The two routes do not, incidentally, rule each other out: reporting to the police and starting civil proceedings can simply run side by side.

7. Lodging a complaint with the Netherlands Press Council

Does it concern a press publication by a journalist or medium affiliated with the Netherlands Press Council (Raad voor de Journalistiek)? Then you can lodge a complaint there. It is not a court case but a complaints procedure: the Council assesses whether the journalist complied with the journalistic code of conduct.

A ruling is not legally binding, but it does carry weight. Many affiliated media publish a rectification after a complaint is upheld. The advantage is that the procedure is accessible and free of charge.

When do you engage a lawyer for an unlawful publication?

A lawyer is not always necessary. In simple cases you can contact the website yourself or report the matter to the platform.

Do engage a lawyer if:

• The publication causes serious reputational harm.
• The other party does not respond to your request.
• A letter of claim has had no effect.
• The medium is unwilling to rectify.
• You want to act quickly through summary proceedings.

We help you determine the most effective route. Sometimes a well-timed letter of claim is enough. Sometimes going to court is unavoidable. In an initial conversation we map out your situation and advise on the best approach.

Legal advice from a lawyer for unlawful publication — a selection of our recent work:

• Proceedings for a company that was accused by a commercial broadcaster of unlawful and criminally culpable conduct.
• Reviewing a publication for lawfulness on behalf of the medium that wanted to publish the article.
• Guiding a company in answering questions from a national daily as part of the right of reply.
• Assessing a publication for possible unlawfulness on behalf of the person concerned.
• Proceedings against a gossip channel over an unlawful publication.
• Proceedings against a broadcaster over showing a person recognisably in a broadcast.
• Assistance in proceedings brought over an allegedly unlawful TikTok video.
• Assisting the maker of a documentary in proceedings brought by its main subject.

Would you like to know more, or need legal advice straight away? Get in contact with us. We are happy to help.

 

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