Disputes about unlawful publications involve competing fundamental rights: freedom of expression under Article 10 of the European Convention on Human Rights and protection of reputation and privacy under Article 8. Deciding whether a publication is unlawful requires a careful balancing exercise.
When is a publication unlawful?
Factors that can make a publication unlawful include:
- unnecessarily offensive content, and
- insufficient factual support.
The court balances freedom of expression against the right to reputation, considering factors such as:
1. The nature and seriousness of the allegation
Does it involve serious accusations, such as criminal offences or reprehensible conduct, capable of causing substantial reputational harm?
2. Factual support
Are the statements supported by verifiable facts, or merely rumours and insinuations? Factual inaccuracies can weigh heavily. Value judgments allow more latitude but still require a sufficient factual basis.
3. Public interest
Does the publication contribute to public debate or expose wrongdoing? A strong public interest can justify wider scope for expression.
4. An opportunity to respond
Was the person concerned given an opportunity to respond before publication? A failure to seek a response can weigh against the publisher.
5. The person’s public role
Public figures must generally tolerate more criticism than private individuals. Politicians, artists and other prominent people have a narrower scope for resisting criticism related to their public role.
6. Tone and context
Was the publication needlessly abusive or insulting? Satire and opinion columns generally allow greater latitude than conventional reporting, although they also have limits.
7. Platform and reach
The likely impact matters: publication through a major media outlet or an account with many followers can have greater consequences than a statement within a closed group.
These factors are considered together when deciding whether the publication exceeds permissible limits.
Civil and criminal avenues
Civil remedies
If you consider a publication unlawful, possible steps include:
- Interim relief proceedings: an expedited application seeking to prevent further publication, remove existing content or require a corrective statement;
- Damages: a claim for compensation for proven loss;
- A complaint to the Dutch Press Council: an accessible alternative route for an assessment of journalistic conduct.
Civil remedies are often quicker and more effective than pursuing a criminal complaint.
Criminal proceedings
Where statements constitute a criminal defamation offence, a complaint may be made to the police. The Public Prosecution Service decides whether to prosecute. This route is generally slower and less predictable.
Recent case law: De Telegraaf and FIO
An example is the dispute between De Telegraaf and FIO (ECLI:NL:RBAMS:2025:1264). A column in De Telegraaf could be read as linking FIO itself to Hamas. The interim relief judge required a corrective statement. Removing the entire column, however, would have restricted press freedom too extensively.
The case turned on the meaning and impact of “affiliated”. A sentence described a demonstration as organised by bodies affiliated with Hamas, followed by Milli Görüs and the mosque umbrella organisation FIO. The question was whether readers would understand FIO itself to be affiliated with Hamas, a serious allegation in view of Hamas’s terrorist designation.
De Telegraaf argued that using a comma rather than a colon made clear that FIO was not being described as affiliated. The judge considered that an average reader might miss that distinction. The wording could therefore suggest the disputed connection. Its ambiguous meaning and surrounding context reinforced that impression, making this aspect of the publication unlawful.
The boundary between a permissible statement and an unlawful publication can therefore turn on subtle differences in wording and context.
Further advice
Assessing a publication requires balancing two fundamental rights. If a publication harms your reputation, specialist legal advice can help identify appropriate steps. Contact Thomas Kriense at Guldemond Advocaten.
