A person or company with a grievance against another person or company may wish to air his opinions through the internet; for example by posting a message on his website, blog or via a bulk email. Although, in principle everyone is free to express his opinion, this right is limited by the right of privacy and the right of protection against defamation.
We now turn to consider the hypothetical situation where Company A has posted an article on its website stating that Company B has been defrauding customers.
On the assumption that the article was made without any proper basis and was, in fact, defamatory, we consider:
a. what remedies (if any) Company B would have against Company A in The Netherlands; and
b. whether the position would be any different in this jurisdiction if (i) one of Company A's directors (Mr A) had also defamed Company B; or (ii) the article posted by Company A also defamed a director of Company B (Mr B).
A statement will be unlawful where for example, a company (“Company A”), or a director (“Mr A”) of Company A, posts a message on its website which falsely states that another company (“Company B”) and/or one of its directors (“Mr B”) is defrauding customers. We will consider the remedies that are available under Dutch law to Company B and/or Mr B , as against Company A or Mr A.
Cause of action
A defamation claim against a person or a legal entity can be initiated by a person (in this case, Mr B) or a company (in this case, Company B) where that person or company is directly affected by the statement. The claim may be based in either criminal or civil law.
Criminal defamation law in The Netherlands applies in respect of three types of offensive statements: insult, slander and malicious defamation. Malicious defamation concerns the deliberate and intentional dissemination of false and factual statements that are either defamatory or cause harm to a person or company. If this happens in writing, for example, by publishing the false statements on a website, the offender is guilty of “defamatory writing” and punishable with a term of imprisonment not exceeding one year or a third category fine.
Civil defamation in The Netherlands is governed by section 6:162 of The Netherlands Civil Code (“NCC”) and the question of whether a statement amounts to a wrongful act depends on the circumstances of each case. Dutch case law is extensive and diverse but ultimately aims to balance the interests of the parties and general interests. The case law provides that liability will arise where the statement is false and the offender (in this case, Company A or Mr A) knew or should have known this.
Civil law provides the various remedies for a company or a person who is the victim of such wrongful act, in particular, the victim may seek:
a. a declaratory judgment that the statements are unlawful (section 6:162 in conjunction with section 3:302 NCC);
b. compensation of material and economic damages (section 6:162 in conjunction with section 6:96/6:106 NCC);
c. a prohibition on the making or repeating of such statements (section 6:162 in conjunction with section 6:103 NCC) under forfeiture of a penalty;
d. publication by the victim of the court decision (“rectification”) (section 6:162 in conjunction with section 6:103 NCC) under forfeiture of a penalty.
In summary, where either an individual or company is the victim of defamation, he / she / it may have grounds to bring either civil or criminal actions against the individual or company which has posted the false statements on its website.
The question of whether the court will grant a claim based on defamation cannot be easily predicted. In assessing the dispute, the court will weigh the right of freedom of speech against the right of privacy. Which right will prevail depends on the circumstances of the case.