Reputational harm caused by a publication: what can you do?

One article that is not accurate. Sometimes that is all it takes. Within a day everyone is googling your name and finding only that one story. Clients drop away, collaborations freeze, a financier pulls out. Whether it is a social media post going viral or a run of false reviews, you are the one left with the reputational harm. And the question is what you can do about it.

A reputational harm lawyer assesses, on the basis of Article 6:162 of the Dutch Civil Code, whether an unlawful publication or statement is causing reputational harm, and then acts: from a letter of claim and rectification through to claiming material and non-material damages in court.

Are you faced with reputational harm caused by a publication or statement? Call 020 675 88 21 or get in contact with Merel Teunissen for a brief initial assessment of your options.

Is your legal position strong?

That is the question you are probably asking before you consider phoning a lawyer. Not every negative statement is unlawful. A sharp but factually accurate review is permitted, however unpleasant. It only becomes legally relevant where something is wrong with the publication itself: accusations not based on facts, an unnecessarily wounding tone, the absence of a right of reply, or a publication whose harm is out of proportion to the public interest.

With reputational harm the court always weighs two fundamental rights against each other. On one side freedom of expression (Article 10 ECHR), on the other the right to protection of honour and reputation (Article 8 ECHR). Neither carries more weight by definition. All the circumstances count: the seriousness of the accusation, the factual basis, how well known the person concerned is, and whether the publication serves a public interest.

In my practice I find that people underestimate the consequences of reputational harm until it is too late. A director who comes under pressure, a business owner who loses their financing, a self-employed worker whose commissions dry up, sometimes within a week. And anyone who googles their name finds the article ahead of everything else.

What does a reputational harm lawyer actually do?

Assessing your legal position

Are we dealing with statements of fact or with an opinion? Is there a public interest? How wide is the reach? Those questions determine not only whether action is worthwhile, but also which route offers the best prospects. After an initial analysis you know where you stand and what is realistic.

Forcing removal or rectification

Once an unlawful publication has been established, we usually begin with a letter of claim to the responsible party. In many cases that is enough. If the other party does not respond or refuses to cooperate, summary proceedings offer a way forward. The court can order removal, impose a rectification and attach a penalty payment to it.

Which route is fastest depends on your situation. What I see more often than you would expect: parties that respond to a legally strong letter of claim, without it coming to court. But sometimes there is good reason not to claim a rectification and to seek removal alone, because proceedings can themselves generate fresh publicity. That is a strategic choice we talk through together beforehand.

Claiming damages

Reputational harm often has a financial side. Lost turnover, commissions that fall through, lost profit: that is material loss you can recover from the party responsible. Alongside material loss you can also claim non-material damages for the damage to your honour and reputation, on the basis of Article 6:106 of the Dutch Civil Code.

The court determines non-material loss on the basis of what is equitable. What counts in concrete terms: the seriousness of the accusation, the reach of the publication, how well known the person concerned is, and whether the other party knew the publication was inaccurate. The Smartengeldgids, which records awards made in earlier cases, serves as a frame of reference. The better the harm is documented, with terminated contracts, turnover figures and demonstrably lost commissions, the greater the chance of a serious award.

Intervening in advance where a publication is imminent

Do you know that a damaging article is coming? Then you do not have to wait. We can claim a publication ban in summary proceedings, or guide you through the right of reply so that your response is legally strong and the reputational harm is contained.

Would you like to know what is legally possible in your situation? Get in contact for an initial conversation.

Reputational harm for businesses

Businesses are hit at least as hard as private individuals, but the harm looks different. Think of a former employee posting anonymous reviews, a competitor spreading damaging information, or a piece of journalism that is neither accurate nor complete. Clients walking away, contracts terminated, financiers withdrawing with an e-mail as the evidence. For listed companies a falling share price comes on top of that.

We regularly act for businesses faced with unlawful coverage or damaging statements. Legally this too turns on the unlawful act (Article 6:162 of the Dutch Civil Code). The difference with private individuals lies in the evidence: businesses can demonstrate material loss more concretely. Turnover figures fall measurably, contracts are demonstrably terminated.

From practice: the YouTube report that was online for a day

A shop owner in Nijmegen. A YouTube programme with almost a million subscribers. A report whose title said his shop was “apparently known” for selling stolen laptops. Online for one day, but the damage was already done: threats, racist comments under the video, negative reactions from family and friends, and an employer who did not renew his contract.

What exactly had gone wrong? A member of the programme’s staff had phoned a third party and, in doing so, posed as someone else, presenting a fictitious case. That third party responded on the basis of that false picture and said that stolen devices had been sold through the shop on a number of occasions. That statement ended up in the report as a fact.

The shop owner’s lawyer sent a letter of claim the same day. The report went offline the next day. A rectified version followed 48 hours later, without the offending passages.

The shop owner nevertheless pressed on with proceedings. The District Court of Midden-Nederland gave judgment in July 2024 (ECLI:NL:RBMNE:2024:4146).

The court held that the original report was unlawful. The statement that the shop was “known for” selling stolen goods suggested a pattern as well as implicit knowledge on the owner’s part. That accusation found no support in the facts, because its only source had been contaminated by the journalist’s own method. The court’s reasoning: a journalist who generates information by posing as someone else must be alive to the fact that this gives the other person a false picture. That is not what may be expected of a good journalist.

The court awarded non-material damages of €1,500. That figure was relatively modest, partly because the unlawful version had been online for only one day and the broadcaster rectified quickly. The claim for material damages was refused, not because there was no loss, but because the shop owner had not sufficiently established the causal link between the publication and his fall in turnover. The coronavirus crisis had already affected his turnover, and the figures submitted showed no significant decline after the date of publication.

What does this case teach us? Three things I keep coming back to in practice:

• First: speed counts on both sides. A prompt letter of claim limited the further harm here, but it also depressed the eventual award.
• Second: a rectification is not a discharge. The broadcaster rectified, but that did not mean the unlawful act disappeared with it.
• Third: material loss is substantiated with facts, not with feeling. If you want lost turnover compensated, you have to be able to show precisely which fall in turnover, which lost commissions or which terminated contracts are directly traceable to the publication. Keep everything.

Unsure whether your position is strong enough? Call 020 675 88 21 for a brief initial assessment. We will help you work out what is realistically achievable.