Unlawful publications present a complex legal issue in which the right to freedom of expression (Article 10 ECHR) clashes with the right to protection of honour, reputation, and privacy (Article 8 ECHR). Determining whether a publication is unlawful requires a careful balancing of interests by the court.
When is a publication unlawful?
A publication is deemed unlawful if it:
- is unnecessarily offensive, and
- lacks sufficient factual support.
When assessing lawfulness, the court weighs freedom of expression against the right to honour and reputation, applying the following criteria:
1. Nature and Seriousness of the Allegation
Does it concern serious accusations (e.g., criminal offenses or morally reprehensible conduct) that may cause significant reputational damage?
2. Factual Basis
Are the statements based on verifiable facts, or merely on rumours or insinuations? Factual inaccuracies quickly render a publication unlawful. Value judgments enjoy greater protection, provided they are founded on factual grounds.
3. Public Interest
Does the publication contribute to public debate or expose wrongdoing? The greater the public interest, the wider the scope of freedom of expression.
4. Right of Reply
Was the person concerned given the opportunity to respond before publication? Failing to offer a right of reply generally works to the detriment of the publisher.
5. Status of the Person Concerned
Public figures must tolerate more criticism than private individuals. Politicians, artists, and other prominent figures enjoy less protection, provided the criticism relates to their public role.
6. Tone and Context
Was the tone of the publication needlessly insulting or offensive? Satire or columns often allow more leeway than standard journalism, but even there, not every boundary may be crossed.
7. Platform and Reach
The impact of the publication also matters: a statement made on a major media platform or channel with a large audience carries more weight than one in a closed group.
These factors are assessed collectively to determine whether a publication crosses the line of what is permissible.
Civil and Criminal Remedies
Civil Proceedings
If you believe a publication is unlawful, you may take civil action:
- Preliminary injunction: A swift procedure to request a prohibition on further publication, removal of existing content, or publication of a rectification.
- Damages: Claim financial compensation for harm suffered.
- Complaint to the Press Council: A low-threshold option for an independent review of your complaint.
The civil route is often more effective and faster than criminal proceedings.
Criminal Proceedings
In cases of defamation or slander, you can file a complaint with the police. The Public Prosecution Service then decides whether to prosecute. This route is generally more time-consuming and less predictable.
Recent Case Law: De Telegraaf and FIO
A recent example is the case between De Telegraaf and FIO (ECLI:NL:RBAMS:2025:1264). In a column, De Telegraaf wrongfully linked FIO to Hamas. The preliminary relief judge ruled that this connection was unlawful and ordered De Telegraaf to publish a rectification. However, the request to remove the column was denied, as this would constitute an excessive restriction of press freedom.
The dispute centred on the meaning and impact of the word “affiliated.” The column stated that a demonstration was organised by “organisations affiliated with Hamas, Milli Görüs and the mosque federation FIO.” The crux was whether this wording suggested that FIO itself was affiliated with Hamas – a grave allegation given Hamas’s status as a terrorist organisation.
Although De Telegraaf argued that the use of a comma rather than a colon made it grammatically clear that FIO was not meant to be included, the judge disagreed: the average reader would likely not notice such a subtle distinction. As a result, the wording could indeed be understood as implying a connection between FIO and Hamas. The term “affiliated” thus became a legal pivot point between freedom of expression and reputational harm, especially because the context – such as the subheading “Hamas supporters’ demands” – amplified the suggestive implication. .
In other words: “The difference between a permissible statement and an unlawful publication is often a matter of subtle nuances.”
Conclusion
Assessing whether a publication is unlawful requires a delicate balance between two fundamental rights. If you believe that your honour or reputation has been harmed by a publication, it is advisable to seek legal advice. A specialised lawyer can guide you in taking the right steps to protect your reputation. Contact Thomas Kriense at Guldemond Advocaten.
