A disclaimer is a statement in which a business sets out the limits of what it promises and of what it can be held liable for. Under Dutch law a disclaimer has no independent legal force: it is a contractual clause or a general condition, and it works only to the extent that Dutch contract law allows liability to be limited and that the clause has actually become part of the agreement with the user. A wall of text stating that all liability is excluded achieves close to nothing here.
This article explains what a disclaimer can and cannot do under Dutch law, which limits the Dutch Civil Code sets on exclusions of liability, how a disclaimer becomes binding on the people who read your website, and how it differs from the privacy statement, the cookie notice and the general terms and conditions that a Dutch business also needs.
What a disclaimer does, and what it cannot do
A disclaimer performs three functions. It manages expectations, by saying what the information or the service is and is not. It allocates risk, by limiting liability within the boundaries the law allows. And it evidences good faith, by showing that the user was told what they were getting.
What it cannot do is create an exemption that Dutch law does not recognise. Liability for personal injury or death is not excluded in practice; liability for one’s own intent or deliberate recklessness cannot be excluded at all; and product liability under the Dutch Civil Code cannot be excluded or limited towards the injured party by any clause. Nor can a disclaimer make a statement true. If a website says something that is misleading, the disclaimer at the foot of the page does not cure it; the rules on misleading advertising and unfair commercial practices apply to the statement, not to the footnote.
It is a contract term, not a notice
This is the point most templates get wrong. In Dutch law a clause limiting liability binds the other party only if it forms part of the agreement between them. For a visitor who merely reads an article there is often no agreement at all, and the disclaimer then functions as information about the nature of the content rather than as a contractual exclusion. That is still worth having, because it shapes what the reader could reasonably expect, but it is a weaker instrument than a clause the user accepted.
Where there is a contract, whether for a purchase, a subscription or the use of a platform, the disclaimer normally sits inside the general terms and conditions, and the rules on general terms apply to it in full. Those rules are strict, and they are where most disclaimers fail.
The limits the Civil Code sets on excluding liability
Dutch law does allow parties to limit liability. It does not allow them to do so without regard to the circumstances, and a court will set a clause aside where relying on it would be unacceptable by standards of reasonableness and fairness. That general correction, in article 6:248 of the Dutch Civil Code, is the backstop behind every exclusion clause in the Netherlands.
Intent and deliberate recklessness
The clearest boundary is conduct. Settled Dutch case law holds that a party cannot invoke an exclusion clause where the damage was caused by its own intent or deliberate recklessness, or by that of the persons entrusted with the management of its business. Beyond that hard core, the court weighs the seriousness of the fault, the nature and further content of the contract, the relative positions of the parties, the way the clause came about, how far the other party was aware of its scope, and whether insurance was available. A clause that survives between two large commercial parties may well fall where the same wording is used against a consumer.
The rules on general terms and conditions
Where the disclaimer forms part of standard terms, articles 6:231 and following of the Dutch Civil Code apply. Two grounds of annulment matter. A clause can be annulled if it is unreasonably onerous to the other party, having regard to the nature and content of the agreement, the way the terms came about, the mutually apparent interests of the parties and the other circumstances of the case. And a clause can be annulled if the user was not given a reasonable opportunity to take note of the terms before or at the time of contracting.
For contracts with consumers the law is harder still. The Civil Code contains a black list of clauses that are always unreasonably onerous and a grey list of clauses that are presumed to be so unless the business proves otherwise. A clause that wholly or partly releases the business from a statutory obligation to compensate damage sits on the grey list, which means that in a consumer contract the burden of justifying the exclusion falls on the business. Clauses of this kind can also be assessed under the European rules on unfair terms in consumer contracts, which the court applies of its own motion.
Businesses that contract only with other businesses should not assume they are outside these rules. Dutch courts apply the standards of reasonableness and fairness with an eye to the position of a small counterparty, so a one-person business faced with the standard terms of a large supplier is not without protection.
Liability that cannot be excluded
Some liability is simply outside the reach of a disclaimer. Article 6:192 of the Dutch Civil Code provides that the liability of a producer under the product liability rules cannot be excluded or limited towards the injured party. Liability for death or personal injury is, in practice, not excludable. Statutory obligations towards consumers, including the right to a product that conforms to the contract and the statutory guarantee that follows from it, cannot be set aside by a clause on a website. And where a business is a data controller, the obligations under the General Data Protection Regulation apply regardless of what any disclaimer says.
How a disclaimer becomes binding
A disclaimer that nobody could reasonably have seen is worth very little, and a disclaimer buried in a document the user never received is worth less. Dutch law asks two questions: did the terms become part of the agreement, and was the other party given a reasonable opportunity to take note of them.
For online contracts the second question has a specific answer. The terms must be made available electronically in a way that allows the user to store them and to consult them later, and where that is not done the user may generally annul the clause. In practice that means a link that opens the terms before the order is placed, a downloadable file, and the terms sent with the order confirmation. A pop-up that disappears is not storage.
The first question is about assent. A tick box placed before the order is confirmed, with a link to the terms next to it, is the standard way of demonstrating acceptance, and the log of that acceptance should be retained with the order record. For a website that is merely read, place the disclaimer where the reader meets the risk: a short notice at the head of an article that touches on legal, medical or financial matters does more work than a footer link, precisely because it is where the reliance would occur.
Two further practical points. Terms that arrive after the contract is concluded do not become part of it, so the moment of presentation matters more than the content. And where your own terms and your counterparty’s terms both purport to apply, Dutch law resolves the clash by giving priority in principle to the terms referred to first, unless the second reference expressly rejects the first. A disclaimer that never wins that battle of forms protects nothing.
What a Dutch website must state anyway
Separately from any disclaimer, a business providing a service online has statutory information duties. Article 3:15d of the Dutch Civil Code requires a provider of an information society service to make certain information easily, directly and permanently accessible: its identity and the address of its place of establishment, contact details including an electronic address allowing rapid and direct communication, its trade register number where it is registered, the supervisory authority where the activity is subject to a licensing regime, details of any professional body and professional title where the activity is regulated, and its VAT identification number where it carries out activities subject to VAT. Prices must be stated clearly, indicating whether taxes and delivery costs are included.
This is the material that usually sits on the same page as the disclaimer, and it is worth separating in your own mind: the information duty is mandatory and its absence is a breach, while the disclaimer is an attempt to limit liability whose effect depends on the rules described above.
Four documents that are often confused
A Dutch business operating online normally needs four separate documents, and merging them causes problems in all four directions.
The privacy statement discharges the information duty in the General Data Protection Regulation. It tells data subjects who the controller is, what personal data are processed, for which purposes and on which legal basis, who receives the data, how long they are kept, and what rights the data subject has. It is mandatory wherever personal data are processed, and it is enforced by the Autoriteit Persoonsgegevens, which can impose administrative fines up to the higher of twenty million euro or four per cent of total worldwide annual turnover for the most serious infringements, and up to the lower tier of ten million euro or two per cent for others. A disclaimer is not a substitute for it and cannot limit the obligations it describes.
The cookie notice addresses a different rule again. Placing or reading information on a user’s device requires clear information and, for anything beyond what is strictly necessary for the service, prior consent. In the Netherlands this obligation follows from the Telecommunications Act and is supervised by the Authority for Consumers and Markets, while the processing of any personal data that results falls to the Autoriteit Persoonsgegevens. Consent must be a genuine choice: refusing has to be as easy as accepting.
The general terms and conditions govern the relationship: what is delivered, when, at what price, on what payment terms, with which warranties, and with which limitations of liability. This is where an exclusion clause belongs if you want it to bind a contracting party. Our guide to general terms and conditions sets out how to build and deploy them.
The disclaimer, properly understood, is the shortest of the four. It says what the website and its content are, disclaims warranties as to accuracy and availability within the limits described above, and points to the terms that govern any contractual relationship.
A note on appointing a data protection officer
The obligation to appoint a data protection officer is narrower than many businesses assume. Under the General Data Protection Regulation it applies to public authorities and bodies, to controllers and processors whose core activities consist of processing operations requiring regular and systematic monitoring of data subjects on a large scale, and to those whose core activities consist of large-scale processing of special categories of data or of data relating to criminal convictions and offences. Many ordinary commercial websites fall outside it, and appointing an officer voluntarily brings the statutory position and protections of the role with it, which is a decision to take deliberately rather than by default.
The clauses that matter, by type of business
There is no universal disclaimer, because the clause has to answer the risk the business actually runs. The following are the recurring ones and what Dutch law does with them.
Accuracy of information
A statement that content is provided for general information, is not exhaustive, and may become outdated is both fair and useful, and it shapes what a reader can reasonably expect. It does not license carelessness. A publisher that knows information is wrong and leaves it up cannot rely on the clause, and a business that presents information as current when it is not may be engaging in a misleading commercial practice towards consumers. The honest version of this clause states the date of the content and says how corrections are made.
Not professional advice
For legal, medical, financial and tax content this is the essential clause, and it needs to be specific rather than generic. Say what the content is not, name the professional the reader should consult, and state that no relationship is created by reading the page. In the Netherlands this matters for a further reason: investment advice and financial services are regulated activities supervised by the Autoriteit Financiële Markten, and a website that strays from general information into individual recommendations may need a licence regardless of what the disclaimer says. The clause describes the boundary; it does not move it.
Products and misuse
For a seller of goods the important limits are the ones described earlier. Liability under the product liability rules cannot be excluded, and consumers keep their statutory rights of conformity. What a clause can usefully do is define the intended use, refer to the instructions and warnings supplied with the product, and make clear that the seller does not warrant results from use outside that intended purpose. That is a legitimate allocation of risk, and it is materially strengthened by instructions that are actually clear. Our article on product liability in the Netherlands sets out where the line falls.
Links and user-generated content
A statement that the business is not responsible for the content of external websites reflects the general position, but it is not what does the legal work. The liability position of intermediaries who host or transmit content is governed by the Digital Services Act, which has applied in full since 17 February 2024 and sets out when a hosting provider is exempt from liability and what it must do once it obtains knowledge of illegal content. A disclaimer cannot create that exemption; a working notice-and-action procedure can preserve it. If your site carries comments, reviews or user uploads, the procedure is the protection and the clause merely describes it.
Affiliate links and sponsored content
Transparency about a commercial relationship is a legal obligation in the Netherlands, not a courtesy, and the American Federal Trade Commission guidance that most templates cite is not the applicable rule here. Failing to identify commercial content as such is capable of being a misleading omission under the rules on unfair commercial practices in the Dutch Civil Code, which apply to business-to-consumer communication and are enforced by the Authority for Consumers and Markets. The Dutch Advertising Code contains a specific code for social media and influencer marketing requiring any material relationship to be disclosed clearly and at the start of the message. The disclosure therefore belongs next to the recommendation, not in a footer. Our note on unfair commercial practices explains how the rules are applied.
Availability and service levels
For software and online services the honest clause distinguishes between what is promised and what is not. Committing to a defined availability with a defined remedy, and excluding consequential loss above a stated cap, is a workable structure that Dutch courts recognise. A blanket exclusion of all liability for downtime combined with a promise of continuous availability elsewhere on the site is not, because the two cannot both be true and the court will resolve the contradiction against the party that drafted it.
Copyright and use of your content
A copyright notice does not create the right; copyright arises on creation, without registration. What the notice does is remove any doubt about ownership and set out what use is permitted, which is genuinely useful for content that is otherwise likely to be reproduced. Where you want to permit specific uses, say so, because a bare reservation of all rights invites the informal copying it was meant to prevent and gives you nothing extra when you need to act.
Drafting a disclaimer that stands up
Four things separate a clause that survives from one that is set aside.
The first is scope that matches the business. Before writing anything, list what the business actually does and where a user could suffer loss: content published, advice given, goods sold, services delivered, data processed, third-party material hosted, links carried. Each item on that list either needs a clause or does not. A clause covering a risk the business does not run adds length and weakens credibility; a missing clause is where the claim will land.
The second is specificity. In Dutch law an exclusion that names the loss it covers, and caps it at a figure related to what the customer paid or to what the insurance covers, is far more likely to be upheld than a blanket exclusion of everything. Name the categories excluded, such as loss of profit, loss of data or business interruption, and state the cap. A limitation is more defensible than an exclusion, and both are more defensible than silence.
The third is plain language. The requirement that terms be intelligible is not decorative: in consumer contracts an unclear term is interpreted in the way most favourable to the consumer, so obscurity works against the drafter. Write short sentences, use ordinary words, and put the clause where it is read.
The fourth is maintenance. A disclaimer describes a business at a point in time, and both the business and the law move. Review it when you launch a product line, start a subscription model, begin processing a new category of data, enter a new market, or change how you handle user content, and review it in any event annually. Note the date of the last revision on the page.
What good and bad clauses look like
The difference is easiest to see side by side.
A weak clause for an information website says only that the site contains information and that the operator is not responsible for any losses. It defines nothing, excludes everything, and is exactly the shape a court is invited to set aside.
A workable version is more modest and more effective. It states that the content is general information about Dutch law that does not take account of the reader’s circumstances, that it is not legal advice and creates no lawyer-client relationship, that it reflects the law as at the date shown and may be superseded, and that the reader should obtain advice before acting. Every one of those statements is true, verifiable and relevant to what a reader might reasonably rely on.
The same contrast applies to products. Saying that the seller is not liable for any damage whatsoever is worth nothing. Saying that the product is intended for a described use, that the instructions and warnings supplied with it must be followed, that the seller does not warrant results from use outside that intended purpose, and that nothing in the clause affects the buyer’s statutory rights or the seller’s liability under the product liability rules, is both accurate and enforceable, and it tells the customer something they can act on.
Cross-border websites: which law and which court
A disclaimer that states that Dutch law applies and that the courts of Rotterdam have jurisdiction is doing less than its drafter believes as soon as consumers abroad are involved. Two European regulations set the outer limits, and neither can be contracted away.
On applicable law, the Rome I Regulation allows parties to choose the governing law, but in a consumer contract that choice may not deprive the consumer of the protection afforded by the mandatory rules of the law of the country where they have their habitual residence, where the business pursues or directs its activities to that country. A Dutch webshop that ships to Belgium and Germany and advertises in those markets is therefore subject to the mandatory consumer protection of those countries, whatever the terms say. The clause remains useful for everything the mandatory rules do not cover, but it is not the end of the analysis.
On jurisdiction, the Brussels I bis Regulation gives a consumer domiciled in a member state the right to sue the business either in the business’s member state or in their own, and it provides that the business may in principle sue the consumer only in the consumer’s own member state. A jurisdiction clause agreed before the dispute arose generally cannot take that away.
Between businesses the position is much freer, and a clear choice of Dutch law with a chosen forum is normally respected. The practical conclusion is to keep the two situations apart: one set of terms for consumers, drafted with the mandatory rules of the markets you actually sell into in mind, and one for business customers where the choice of law and forum does most of the work.
Who enforces this, and what a mistake costs
It is easy to think of a disclaimer as something that only ever surfaces in a civil dispute. In the Netherlands several regulators reach the same page.
The Authority for Consumers and Markets supervises consumer law, unfair commercial practices and the cookie rules in the Telecommunications Act, and it can impose fines and binding instructions and publish its decisions. The Autoriteit Persoonsgegevens supervises the General Data Protection Regulation and the Dutch implementing act, and its powers run from investigation and orders subject to a penalty to the administrative fines described above. The Autoriteit Financiële Markten supervises financial services and will look at whether a website that presents itself as informational is in fact offering regulated advice. And complaints about advertising, including undisclosed commercial content, are dealt with by the Advertising Code Committee, whose rulings are published and are picked up by the press even though they carry no fine.
Alongside all of that sits the civil route, which is where the disclaimer itself is usually tested: a customer or a competitor invokes it, and the court decides whether the clause became part of the agreement and whether relying on it is acceptable in the circumstances. Fines and civil claims are separate tracks and a business can face both, so the working assumption should be that the same page will be read by a regulator and by a judge, for different purposes.
Disclaimers in email, documents and quotations
The standard confidentiality footer at the bottom of business email is the most widely used and least effective disclaimer in circulation. A statement that a message is confidential and must be deleted if received in error is added after the recipient has already read it, and it does not create an obligation on someone who never agreed to it. It is not useless, because it evidences the sender’s intention that the material was confidential, which can matter in a dispute about misuse, but it should not be relied on as protection.
Two adjacent uses are worth more. A quotation or proposal should state expressly that it is subject to the general terms and conditions, name them, attach them, and state a validity period; that is the moment at which the terms are effectively presented and the limitation of liability enters the contract. And a report, opinion or model delivered to a client should say who it was prepared for, on what assumptions, at what date, and that no responsibility is accepted towards third parties who obtain it. That kind of restriction is normal professional practice and courts treat it seriously precisely because it is specific.
A checklist before you publish
Run through the following before the page goes live, and again at each annual review.
- The statutory provider information under article 3:15d of the Dutch Civil Code is present, current and easy to find, including the trade register number and, where applicable, the VAT identification number and the professional body.
- The disclaimer, the privacy statement, the cookie notice and the general terms and conditions exist as four separate documents, each linked from the footer of every page.
- The limitation of liability sits in the terms that contracting customers accept, not only on the disclaimer page.
- The terms are presented before the order is confirmed, can be stored by the customer, and the acceptance is logged with the order.
- No clause purports to exclude liability for intent or deliberate recklessness, for death or personal injury, or under the product liability rules.
- Exclusions are specific and capped rather than blanket, and consumers’ statutory rights are expressly preserved.
- Content that touches on legal, medical, financial or tax matters carries a short notice at the top of the page as well as the general disclaimer.
- Commercial relationships, including affiliate links and sponsored content, are disclosed next to the recommendation and not only in the footer.
- Where user content or external links are carried, a working notice-and-action procedure exists and a contact point is published.
- The choice of law and forum distinguishes between consumers and business customers, and takes account of the markets you actually sell into.
- The page shows the date of the last revision, and the review is diarised.
The value of this exercise is not the list itself but what it forces you to do: to describe, in writing, what your business actually does and where a user could be harmed by it. A disclaimer written after that exercise says something. One written before it is decoration.
Common questions
Is a disclaimer legally required in the Netherlands?
No. A disclaimer is voluntary. What is required is different: the information about the provider under article 3:15d of the Dutch Civil Code, a privacy statement wherever personal data are processed, and consent and information for cookies and similar technologies. Businesses often combine those obligations with a disclaimer on one page, which is fine, but it should not obscure which parts are mandatory.
Can I copy a disclaimer from another website?
It is a poor idea for two reasons. The text is someone else’s copyright work, and more importantly it describes someone else’s business and someone else’s risks. Most templates in circulation are drafted for American law and contain concepts that do not exist here, alongside blanket exclusions that Dutch law will not enforce. What you end up with is a document that gives a false sense of protection at the exact points where you needed it.
Does a disclaimer protect me if I gave wrong information?
Partly, and only if it was fair and visible. A properly drafted clause about the nature and currency of information shapes what a reader could reasonably expect and is a real part of the defence. It does not help where the information was knowingly wrong, where the business held itself out as giving individual advice, or where the statement was a misleading commercial practice towards a consumer.
Where should the disclaimer sit on the site?
A general disclaimer belongs on its own page, linked from the footer of every page, with the date of the last revision. Where an individual page carries a specific risk, add a short notice at the top of that page. Where there is a contract, the operative limitation of liability belongs in the general terms and conditions that the customer accepts before ordering, and the acceptance should be logged.
Do I need a lawyer for this?
For a simple information website, a carefully written page based on the principles above will do most of the work. Once there is a contract, a product, a platform or the processing of personal data on any scale, the limitation of liability sits inside terms that need to be drafted for the business and tested against the rules on general terms and conditions. That is a short piece of work compared with the cost of discovering, in a dispute, that the clause you relied on was annulled.
Law and More advises Dutch and international businesses on disclaimers, general terms and conditions, online information duties, product liability and data protection. We draft terms that fit the business and hold up under Dutch law, and we review the ones you already have. You can read more on our IT and technology law practice page. Contact us if you would like your website documents reviewed.
