Most media law disputes in the Netherlands arise from a small number of recurring mistakes, and hardly any of them involve bad intent. Reusing a photograph without a licence, publishing a recognisable person without weighing their portrait right, adopting a name close to a registered trade mark, or making an accusation you cannot substantiate accounts for the large majority of claims.
Each of these is avoidable with one check before publication. The most important exception to the strict rules is freedom of expression: under Article 10 of the European Convention on Human Rights (ECHR), the press and the public may publish critical and even hurtful information if it serves a public interest and has a sufficient factual basis. Below we discuss the ten mistakes we see most often, the rule each one breaches and what to do instead.
How is media law organised in the Netherlands?
Dutch media law is not one statute but a combination of rules. Copyright and portrait rights are in the Copyright Act (Auteurswet), trade marks in the Benelux Convention on Intellectual Property (BCIP), privacy in the General Data Protection Regulation (GDPR), and liability for unlawful publications in Article 6:162 of the Dutch Civil Code (BW).
On top of these come the criminal provisions on defamation in the Dutch Criminal Code (Wetboek van Strafrecht, Sr), the rules on advertising and unfair commercial practices, and the Media Act (Mediawet 2008) for broadcasters and some online video services. Because online content crosses borders, foreign law may apply as well.
Mistakes rarely come from ignorance of a single rule. They come from time pressure, from the assumption that something found online is free to use, and from concepts borrowed from American law that do not exist in the Netherlands. The best known example is “fair use”, which Dutch law does not have.
Assuming that content found online is free to use
It is not. Copyright arises automatically when a work is created, without registration or a copyright notice, and in principle lasts until 70 years after the death of the author (Article 37 of the Copyright Act).
The Copyright Act gives the maker the exclusive right to publish and reproduce the work. A photograph on a website, a news article, a song or a video clip is therefore protected even if nothing indicates this. Mentioning the photographer’s name does not replace a licence.
Dutch law has no general “fair use” exception. It has a closed list of specific exceptions. The most important for media is the quotation right in Article 15a of the Copyright Act: you may quote from a lawfully published work in an announcement, review, polemic or scientific treatise, provided the quotation is proportionate to its purpose and you state the source and the author. There is also an exception for parody, caricature and pastiche (Article 18b).
In practice, photographers and image agencies actively trace unlicensed use of their images and send claims for the licence fee plus a surcharge. A company that took a professional photograph from a search engine for its website will usually have to pay more than a licence would have cost. Music in a commercial video requires permission from the rightholders, even for a short fragment; there is no rule that a few seconds are free.
What to do: use your own material, material with a written licence or material with a clear open licence whose conditions you follow. Keep the licence with the file, so that you can prove your right of use years later.
Publishing a recognisable person without weighing the portrait right
A person who is recognisable in a photograph or video has a portrait right. If the portrait was not made on their commission, they can oppose publication if they have a reasonable interest in doing so (Article 21 of the Copyright Act).
A reasonable interest is often a privacy interest, for example a photograph taken in a hospital, at a police incident or in a compromising situation. Well-known people can also have a commercial interest: a celebrity whose image is used in an advertisement without payment can claim compensation.
Portraits made on commission (Articles 19 and 20) follow different rules: the person portrayed must in principle consent to publication. That is relevant, for example, for photographs of employees made for the company website.
What to do: ask for written consent (a model release) when you use a recognisable person in advertising, and assess the privacy interest of the person in editorial content. When you use photographs of employees, agree in advance what happens to the images when the employee leaves.
Making an accusation you cannot substantiate
A publication that damages someone’s reputation is unlawful if it lacks a sufficient factual basis or is needlessly hurtful. It can also be a criminal offence: defamation (smaad) under Article 261 and slander (laster) under Article 262 of the Criminal Code.
Under civil law, the court balances two fundamental rights: freedom of expression (Article 10 ECHR) and the right to respect for private life and reputation (Article 8 ECHR). It looks at the nature of the allegations, the seriousness of their consequences, the public interest served, the factual support available at the time of publication, the wording and whether the person concerned was given the opportunity to respond (hoor en wederhoor).
The American idea that public figures must prove bad intent does not apply in the Netherlands. Politicians and executives must accept more criticism than private individuals, but the test remains a balancing of interests. Adding “allegedly” or “in my opinion” does not help if the statement in fact contains a factual accusation without support.
Smaad and laster are complaint offences (klachtdelicten, Article 269 Sr): the Public Prosecution Service (OM) can only prosecute if the person concerned files a complaint. Article 261(3) Sr excludes criminal liability if the author acted in the public interest and could assume in good faith that the accusation was true.
What to do: verify serious accusations with more than one source, keep your research, put the accusation to the person concerned before publication and include their response. For high-risk publications, have them reviewed before they go online. If a publication turns out to be wrong, the court can order a rectification under Article 6:167 BW; a correction you publish yourself often limits the damage.
Treating personal data as free material
Publishing information about identifiable people is processing personal data under the GDPR. Journalistic, academic, artistic and literary publications are largely exempt, but commercial content is not.
The exemption is laid down in Article 43 of the GDPR Implementation Act (Uitvoeringswet AVG). It covers processing exclusively for journalistic purposes and for academic, artistic or literary expression. A company blog, a marketing campaign or a customer story is usually not journalism, so the ordinary GDPR rules apply: a lawful basis, transparency and data minimisation.
Extra care is needed for special categories of personal data, such as health, political opinions and religion, and for data about children. Even where the journalistic exemption applies, the civil law balancing of Article 6:162 BW still protects the privacy of the people you write about.
What to do: record the consent of people who share their personal story with you, publish no more personal details than the story requires, and check whether your content is really journalistic before relying on the exemption.
Using a name or logo close to a registered trade mark
Trade mark law prevents confusion about the commercial origin of goods and services. A name, logo or slogan that resembles a registered trade mark for similar goods or services can be an infringement, even if you did not know the mark.
In the Netherlands, trade marks are registered for the Benelux with the Benelux Office for Intellectual Property (BOIP) or for the whole EU with the EU Intellectual Property Office (EUIPO). The rights of the owner of a Benelux mark are set out in Article 2.20 BCIP. Well-known marks have broader protection, including against use that takes unfair advantage of their reputation.
Mentioning a brand in a review or news item is generally permitted. The problem arises when you use someone else’s mark to promote your own products or suggest a partnership or endorsement that does not exist. A registered trade name at the Chamber of Commerce (KvK) does not give you the right to use that name as a trade mark.
What to do: have a search carried out in the Benelux and EU registers before you launch a new name or campaign, and register your own mark before you invest in it. If you will be active outside the EU, check those markets separately.
Starting production without the necessary releases
A media production often needs several permissions at once: consent from recognisable people, a licence for music and footage, and permission to film on private property. Without them, the production cannot be exploited safely.
Commercial use requires broader and more explicit permissions than editorial use. Background music, artwork visible in the frame or a building’s interior can all need clearance. A permission that covers use on a website does not automatically cover use in a television commercial or on social media.
What to do: work with standard release forms that state exactly which media, territories and periods they cover. Keep the releases with the project, so that you know what is allowed when you reuse material later. Make obtaining permission part of the planning, not an afterthought.
Hosting user content without a notice-and-action procedure
A platform that hosts content from users is in principle not liable for it, as long as it does not know about unlawful content and acts quickly once it is notified. That protection now follows from Article 6 of the Digital Services Act (DSA), which has applied to all online intermediaries since 17 February 2024.
The DSA replaced the corresponding rules of the E-Commerce Directive. It also requires hosting services to offer an easy mechanism for reporting illegal content and to give reasons when they remove content or suspend users. The American DMCA does not apply to a Dutch platform’s liability under Dutch or EU law.
The protection disappears if you edit, select or promote user content in a way that gives you knowledge of or control over it. A site that actively curates reviews or reposts user videos as its own content can be treated as the publisher.
What to do: set clear terms of use, require users to confirm that they hold the rights to what they upload, offer a simple reporting button, and handle reports promptly and on the record.
Advertising without evidence or disclosure
Advertising claims must be correct and verifiable, and commercial content must be recognisable as advertising. Unfair commercial practices towards consumers are prohibited under Articles 6:193a to 6:193j BW.
A commercial practice is misleading if it contains incorrect information or omits essential information, so that the average consumer takes a decision they would not otherwise have taken. The Authority for Consumers and Markets (ACM) enforces these rules and can impose fines. Competitors can also bring a claim before the civil court.
In addition, the Dutch Advertising Code (Nederlandse Reclame Code) applies, including a special code for advertising through social media and influencers. Complaints are handled by the Advertising Code Committee (Reclame Code Commissie). Under that code, an influencer must disclose clearly that a post is sponsored. Claims about health and sustainability are assessed particularly strictly.
What to do: keep evidence for every factual claim before the campaign starts, make every paid collaboration recognisable as advertising, and check sustainability claims against the guidance of the ACM.
Leaving social media use without rules
A post on a company account binds the company, and a post by an employee on a personal account can still harm the employer. Clear rules prevent both problems.
An employer may give reasonable instructions on the performance of work under Article 7:660 BW, which include rules on who may post on official channels and what may be said about the company. An employee who seriously breaches those rules can face measures up to dismissal, but the court always looks at all the circumstances, including whether the rules were known.
What to do: lay down in a social media policy who manages the official accounts, how posts are reviewed and how you respond to a crisis. Explain the policy to employees with practical examples and refer to it in the employment contract or staff handbook.
Ignoring the rules of other countries
Online content can be read everywhere, and someone who feels harmed may be able to sue in their own country. The court there may apply its own law.
Within the EU, the Brussels I bis Regulation determines which court has jurisdiction. In cases about online infringements of personality rights, the Court of Justice of the EU allows the injured person to claim all their damage in the member state where they have the centre of their interests. The Rome II Regulation on applicable law excludes defamation and privacy, so each court applies its own conflict rules.
Copyright and trade mark rights are territorial: a trade mark that is free in the Benelux may be registered by someone else in another country. Rules on defamation and privacy also differ considerably between countries.
What to do: identify the main markets in which your content will be seen and check the rules there for sensitive publications. For campaigns outside the Benelux, include trade mark searches in those countries. Law & More works with foreign counsel where a publication requires advice under another country’s law.
Working with outdated rules
Media law changes quickly, driven mainly by European legislation. A procedure that was adequate a few years ago may no longer be sufficient.
Recent examples are the Digital Services Act, the European Media Freedom Act and the transparency obligations of the EU AI Act, under which content generated or manipulated with artificial intelligence, such as deepfakes, must in principle be labelled as such. The Copyright Act has also been amended to implement the EU Directive on copyright in the Digital Single Market, which affects platforms that share user uploads.
What to do: review your publication procedures, release forms and platform terms at least once a year, and train the people who create content on the rules that matter to them.
In summary
- Copyright arises automatically; Dutch law has no general fair use exception, only specific exceptions such as the quotation right in Article 15a of the Copyright Act.
- Recognisable people can oppose publication of their portrait if they have a reasonable interest; get written consent for advertising.
- Accusations need a sufficient factual basis and an opportunity to respond; smaad and laster are complaint offences.
- Platforms keep their hosting protection under Article 6 DSA only if they act promptly on notices.
- Advertising must be verifiable and recognisable as advertising, including influencer content.
The text of the Copyright Act can be consulted on wetten.overheid.nl. Law & More advises publishers, companies and creators on copyright, portrait rights, trade marks and publications, and acts in disputes about them.
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