Defamation and libel under Dutch law: the differences

Dutch criminal law distinguishes defamation (smaad), libel or written defamation (smaadschrift) and calumny (laster): defamation and libel attack someone’s good name by accusing them of a specific fact, and calumny is the same accusation made while the maker knows it is untrue. All three are prosecuted only if the person concerned files a formal complaint, and in practice the civil route through the court is often faster and more effective.

Below we explain the differences, the defences the law allows, and the steps you can take if someone damages your reputation.

What does Dutch law mean by defamation?

Defamation (smaad) is intentionally attacking someone’s honour or good name by accusing them of a specific fact, with the clear aim of making it public. It is set out in Article 261(1) of the Dutch Criminal Code (Wetboek van Strafrecht, Sr).

Three elements matter. The statement must concern a concrete fact, such as “he stole money from the till”, rather than a general insult. The maker must act intentionally. And the aim must evidently be to bring the accusation to the attention of others. Spoken defamation carries a maximum of six months’ imprisonment or a fine of the third category.

A statement that is merely offensive, without imputing a fact, is not defamation but insult (belediging, Article 266 Sr). Calling someone a crook is an insult; saying that someone defrauded a named customer is an accusation of a fact.

What is libel under Dutch law?

Libel, or written defamation (smaadschrift), is defamation committed through writings or images that are distributed, displayed publicly or read aloud (Article 261(2) Sr). It carries a higher maximum: one year’s imprisonment or a fine of the third category.

Today this covers far more than newspaper articles. Posts on social media, reviews, blogs, forum messages and messages in large group chats can all qualify, as long as the other elements are met.

What is the difference between defamation and calumny?

The difference lies in what the maker knows. Calumny (laster, Article 262 Sr) is defamation or libel committed by someone who knows that the accusation is untrue.

Because it involves a deliberate lie, calumny is punished more severely, with a maximum of two years’ imprisonment or a fine of the fourth category. In English texts laster is sometimes also translated as “slander”, which in common law means spoken defamation. That translation causes confusion: under Dutch law the decisive factor is knowledge of untruth, not whether the statement was spoken or written.

Telling the truth is not always a safe harbour for defamation. Under Article 261 Sr the question is whether someone’s honour is attacked, not only whether the statement is false. A true accusation can still be defamatory if it is spread without a justified reason. It can never be calumny, however, because calumny requires that the maker knows the accusation is untrue.

When is a statement not punishable?

A statement is not defamation or libel if the maker acted in necessary self-defence, or reasonably believed in good faith that the accusation was true and that the public interest required it to be made (Article 261(3) Sr).

This exception protects, for example, someone who warns others about a trader who has repeatedly failed to deliver, provided the warning is based on facts and phrased with care. Journalists and consumer programmes regularly rely on it. Whether the exception applies depends on the facts available to the maker at the time, the way the accusation was worded and the seriousness of the public interest.

Is defamation a complaint offence?

Yes. Defamation, libel and calumny are complaint offences (klachtdelicten): the Public Prosecution Service (OM) can only prosecute if the person concerned files a complaint (Article 269 Sr).

There is one exception. No complaint is needed if the offence is committed against a public authority, a public body or institution, or a civil servant during or in connection with the lawful performance of their duties. For defamation of a deceased person, certain close relatives may file the complaint (Article 270 Sr).

A complaint is more than an ordinary police report. You must expressly state that you want the offender to be prosecuted. It must be filed within three months of the day you became aware of the offence (Article 66 Sr). After that period, criminal prosecution is no longer possible.

Can you stop a publication before it appears?

Sometimes, but only in exceptional cases. The civil court can prohibit a publication in advance if it is clear that it would be unlawful, but courts are cautious because a prior ban restricts freedom of expression.

If you know that someone is about to publish a false accusation about you, you can ask the preliminary relief judge (voorzieningenrechter) in summary proceedings (kort geding) for a ban. You will need to show concretely what is going to be published and why it is unlawful. A lawyer is required for these proceedings. In most cases the court will prefer to assess a statement after publication, when it can see the exact wording and context.

Why is the civil route often more effective?

Criminal prosecution rarely leads to more than a fine and can take a long time. Through the civil court you can obtain removal, a ban, rectification and damages yourself.

Anyone who commits defamation, libel or calumny also commits a tort, or unlawful act (onrechtmatige daad), under Article 6:162 of the Dutch Civil Code (Burgerlijk Wetboek, BW). The civil court then weighs your right to protection of your reputation against the other party’s freedom of expression, protected by Article 10 of the European Convention on Human Rights. Relevant factors include the seriousness of the accusation, whether it has a basis in the facts available, how it was worded and whether it contributes to a public debate.

In civil proceedings you can ask the court for:

• removal of the statements;
• a ban on repeating them or publishing new ones;
• a rectification (rectificatie) in a form the court sets, under Article 6:167 BW;
• compensation for material and non-material damage;
• a penalty payment (dwangsom) if the other party does not comply with the order.

If urgency is involved, for example because a post is spreading quickly, summary proceedings can produce a decision within a few weeks.

What steps can you take?

Start by securing evidence and asking the other party to remove the statements. If that does not work, choose between a criminal complaint, civil proceedings or both.

Step 1: Secure the evidence

Save the statements before they disappear. Make screenshots showing the date, the author and the web address, and keep copies of letters, emails and messages.

Also note who saw or heard the statements. Statements from witnesses can help show that the accusation was spread to others, which is required for defamation.

Step 2: Ask for removal

Send the maker a written request to remove the statements and stop repeating them, with a short deadline. State that you will take legal action if the request is ignored.

If the statement is on a website or social media platform, you can also report it to the platform. Under the EU Digital Services Act, platforms must have a procedure for reporting illegal content and must deal with reports in a timely and careful way.

Step 3: File a complaint

If you want criminal prosecution, file a complaint with the police within three months and state explicitly that you want the offender prosecuted. The OM then decides whether there is enough evidence to prosecute.

If the case goes to court, the criminal court can impose a sentence, usually a fine. The victim can join the criminal proceedings as an injured party (benadeelde partij) and claim compensation there.

Step 4: Go to the civil court

If there is no prosecution, or if you want the statements removed quickly, start civil proceedings. You can combine this with a criminal complaint.

What damages can you claim?

You can claim material damage, such as lost turnover, and non-material damage for the attack on your honour or good name. Article 6:106 BW expressly allows compensation for non-material damage in that situation.

Companies often suffer turnover loss when customers read accusations of fraud online. That loss must be substantiated with figures. Amounts awarded for non-material damage in Dutch defamation cases are generally modest. The main value of civil proceedings usually lies in the removal, the ban and the rectification.

Does repeated defamation lead to a higher penalty?

A repeat offence can lead to a heavier sentence. The court takes previous convictions into account when setting the penalty.

When someone publishes a series of statements, the court will also consider whether these form a single continuing act or separate offences. In civil cases, repeated publication after a warning weighs against the maker and supports a ban with a penalty payment.

In summary

• Defamation (smaad) and libel (smaadschrift) are accusations of a specific fact aimed at publicity; calumny (laster) is the same, made knowing it is untrue.
• Insult (belediging) is offensive language without accusing someone of a specific fact.
• These are complaint offences: file a complaint within three months and state that you want prosecution.
• Through the civil court you can obtain removal, a ban, rectification and damages, if necessary in summary proceedings.
• Secure evidence immediately and ask for removal before taking further steps.

The provisions discussed here can be found in Title XVI of Book 2 of the Dutch Criminal Code.

Law & More assists individuals and companies whose reputation is damaged, and people accused of defamation. Have you received a letter, a writ of summons or a judgment? Send us the documents. We will check which deadlines apply and what your options are.