A disclaimer on its own does very little under Dutch law. It only limits your liability if it has become part of the agreement with the other party and if the law allows that limitation; liability for your own intent or deliberate recklessness, and product liability towards the injured party, can never be excluded.
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. In the Netherlands it has no independent legal force. It is a contract term or a general condition, and it works only as far as Dutch contract law allows liability to be limited. A long text stating that all liability is excluded achieves close to nothing.
In this article we explain what a disclaimer can and cannot do under Dutch law. We cover the limits the Dutch Civil Code (Burgerlijk Wetboek) sets on excluding liability, how a disclaimer becomes binding on the people who use 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 can a disclaimer do, and what can it not do?
A disclaimer manages expectations and allocates risk within the limits of the law. It cannot create an exemption that Dutch law does not recognise, and it cannot make a misleading statement lawful.
A well-drafted disclaimer has 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 shows good faith, because it proves that the user was told what they were getting.
There are also clear limits. Liability for death or personal injury is not excluded in practice. Liability for your own intent or deliberate recklessness cannot be excluded at all. 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 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 itself, not to the footnote.
Is a disclaimer a contract term or a notice?
Legally, a disclaimer only excludes liability as a contract term. For a visitor who merely reads your pages, it works mainly as information about the nature of the content.
This is the point most templates get wrong. Under Dutch law, a clause limiting liability binds the other party only if it forms part of the agreement between you. A visitor who simply reads an article often has no agreement with you at all. The disclaimer then tells the reader what kind of content this is, rather than excluding liability by contract.
That still has value. It shapes what the reader could reasonably expect from the page. But it is a weaker instrument than a clause the user has accepted.
Where there is a contract, for example for a purchase, a subscription or the use of a platform, the disclaimer normally sits inside the general terms and conditions. The statutory rules on general terms then apply to it in full. Those rules are strict, and they are where most disclaimers fail.
Which limits does the Civil Code set on excluding liability?
Dutch law allows you to limit liability, but not without regard to the circumstances. A court will set a clause aside where relying on it would be unacceptable by standards of reasonableness and fairness (redelijkheid en billijkheid).
That general correction is found in article 6:248 of the Dutch Civil Code. It is the safety net behind every exclusion clause in the Netherlands. On top of it come the specific rules below.
Can you exclude liability for intent or deliberate recklessness?
No. Settled Dutch case law holds that a party cannot rely on an exclusion clause where the damage was caused by its own intent or deliberate recklessness, or by that of the people who manage its business.
Beyond that hard core, the court weighs all the circumstances. These include how serious the fault was, the nature and further content of the contract, the positions of the parties in relation to each other, how the clause came about, how far the other party was aware of its scope, and whether insurance was available.
The result depends on who the parties are. A clause that survives between two large commercial parties may well fail where the same wording is used against a consumer.
What do the rules on general terms and conditions add?
Where the disclaimer is part of standard terms, articles 6:231 and following of the Dutch Civil Code apply. A clause can then be annulled if it is unreasonably onerous, or if the other party had no reasonable opportunity to read the terms.
There are two grounds for annulment. First, a clause can be annulled if it is unreasonably onerous to the other party. The court looks at the nature and content of the agreement, the way the terms came about, the interests of both parties that were apparent to each other, and the other circumstances of the case. Second, a clause can be annulled if the other party was not given a reasonable opportunity to take note of the terms before or when the contract was concluded.
For contracts with consumers the law is stricter 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. Under article 6:237, opening words and point f, a clause that wholly or partly releases the business or a third party from a statutory obligation to pay damages is on the grey list. In a consumer contract, the burden of justifying such an exclusion therefore 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.
Do you only contract with other businesses? Then you should not assume these rules never reach you. Dutch courts apply reasonableness and fairness with an eye to the position of a small counterparty. A one-person business faced with the standard terms of a large supplier is therefore not without protection.
Which liability can never be excluded?
Some liability is simply outside the reach of a disclaimer. Product liability towards the injured party, statutory consumer rights and data protection obligations stay in place, whatever your website says.
The product liability rules in the Dutch Civil Code provide that the liability of a producer cannot be excluded or limited towards the injured party. Liability for death or personal injury is, in practice, not excludable either.
Statutory obligations towards consumers also stay in place. This includes the right to a product that conforms to the contract, and the statutory guarantee that follows from it. A clause on a website cannot set these aside. And if your business is a data controller, the obligations under the General Data Protection Regulation (GDPR, in Dutch AVG) apply regardless of what any disclaimer says.
How does a disclaimer become binding?
A disclaimer binds a contracting party only if it became part of the agreement and the other party had a reasonable opportunity to read it. For online contracts, that means providing the terms electronically in a form the customer can store.
A disclaimer that nobody could reasonably have seen is worth very little. A disclaimer buried in a document the customer never received is worth even 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?
How do you give a reasonable opportunity to read the terms online?
Make the terms available electronically, before or when the contract is concluded, in a way that lets the customer store them and consult them later.
Article 6:234 paragraph 2 of the Dutch Civil Code sets this standard for electronic contracts. Where that is not reasonably possible, you must tell the other party before the contract is concluded where the terms can be read electronically, and that they will be sent on request. If you do not meet these requirements, the other party can in principle annul the clause.
In practice that means three things. A link that opens the terms before the order is placed. A file that can be downloaded. And the terms sent with the order confirmation. A pop-up that disappears is not storage.
How do you show that the terms were accepted?
Use a tick box before the order is confirmed, with a link to the terms right next to it, and keep a log of that acceptance with the order record.
This is the standard way of proving acceptance. For a website that is only read, place the disclaimer where the reader meets the risk. A short notice at the top of an article on legal, medical or financial matters does more work than a footer link, because that is where the reader would rely on the content.
Two further practical points matter. Terms that arrive after the contract is concluded do not become part of it, so the moment you present them matters more than their content.
And sometimes your own terms and those of your counterparty both claim to apply. Under article 6:225 paragraph 3 of the Dutch Civil Code, the second reference then has no effect, unless it expressly rejects the terms referred to first. In principle, therefore, the terms referred to first prevail. A disclaimer that loses this battle of forms protects nothing.
What must a Dutch website state in any case?
Separately from any disclaimer, article 3:15d of the Dutch Civil Code requires online service providers to publish certain basic information. This duty is mandatory; a disclaimer is not.
The rule applies to anyone providing an information society service. The information must be easily, directly and permanently accessible. It covers:
- your identity and the address where you are established;
- contact details, including an email address that allows fast and direct contact;
- your trade register number (at the Chamber of Commerce, KVK), if you are registered;
- the supervisory authority, if your activity requires a licence;
- your professional body and professional title, if you work in a regulated profession;
- your VAT identification number, if you carry out activities subject to VAT.
Prices must also be stated clearly and unambiguously, including whether taxes and delivery costs are included.
This information usually sits on the same page as the disclaimer. Keep the two apart in your mind. The information duty is mandatory, and leaving it out is a breach. The disclaimer is an attempt to limit liability, and its effect depends on the rules described above.
Which four documents are often confused?
A Dutch business that operates online normally needs four separate documents: a privacy statement, a cookie notice, general terms and conditions and a disclaimer. Merging them causes problems in all four directions.
The privacy statement
The privacy statement fulfils the information duty under the GDPR. It tells people who the controller is, which personal data are processed, for which purposes and on which legal basis. It also says who receives the data, how long they are kept, and which rights people have.
A privacy statement is mandatory wherever personal data are processed. The Dutch Data Protection Authority (Autoriteit Persoonsgegevens) enforces it. For the most serious infringements it can impose fines of up to 20 million euro or 4 per cent of total worldwide annual turnover, whichever is higher. For other infringements the maximum is 10 million euro or 2 per cent, again whichever is higher. A disclaimer is no substitute for a privacy statement and cannot limit the obligations it describes.
The cookie notice
The cookie notice deals with a different rule again. Placing or reading information on a user’s device requires clear information. For anything beyond what is strictly necessary for the service, you also need prior consent.
In the Netherlands this obligation follows from the Telecommunications Act (Telecommunicatiewet). The Authority for Consumers and Markets (ACM) supervises it, while the Autoriteit Persoonsgegevens deals with any processing of personal data that results. Consent must be a genuine choice: refusing has to be as easy as accepting.
The general terms and conditions
The general terms and conditions govern the relationship itself. They set out 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 explains how to draft and use them.
The disclaimer
The disclaimer, properly understood, is the shortest of the four. It says what the website and its content are. It disclaims warranties on accuracy and availability, within the limits described above. And it refers to the terms that govern any contractual relationship.
Do you need a data protection officer?
Probably not, if you run an ordinary commercial website. The GDPR only requires a data protection officer in three situations.
Under article 37 of the GDPR, the obligation applies to public authorities and bodies. It also applies to controllers and processors whose core activities require regular and systematic monitoring of individuals on a large scale. And it applies where the 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 these categories. If you appoint an officer voluntarily, the statutory position and protections of that role come with it. That is a decision to take deliberately, not by default.
Which clauses matter for your type of business?
There is no universal disclaimer. Each clause must answer the risk your business actually runs; below are the recurring ones and what Dutch law does with them.
How do you disclaim the accuracy of information?
State that the content is general information, is not complete and may become outdated. This is fair and useful, but it does not excuse carelessness.
Such a statement shapes what a reader can reasonably expect. It does not protect a publisher that knows information is wrong and leaves it online. 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 explains how corrections are made.
How do you make clear that content is not professional advice?
Say specifically what the content is not, name the professional the reader should consult, and state that reading the page creates no client relationship.
For legal, medical, financial and tax content this is the essential clause. It must be specific rather than generic.
In the Netherlands there is a further reason to take care. Investment advice and financial services are regulated activities, supervised by the Dutch Authority for the Financial Markets (Autoriteit Financiële Markten, AFM). A website that moves from general information to individual recommendations may need a licence, whatever the disclaimer says. The clause describes the boundary; it does not move it.
How do you deal with products and misuse?
Define the intended use and refer to the instructions and warnings that come with the product. Product liability and the consumer’s statutory right to conformity stay in place.
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. What a clause can usefully do is define the intended use, refer to the instructions and warnings, and make clear that the seller does not guarantee results from use outside that purpose.
That is a legitimate allocation of risk. It is much stronger when the instructions are actually clear. Our article on product liability in the Netherlands explains where the line falls.
What about links and user-generated content?
A clause saying you are not responsible for external websites reflects the general position, but it does not do the legal work. For content you host, the European Digital Services Act and a working notice-and-action procedure decide your position.
The Digital Services Act (DSA) governs the liability of intermediaries who host or transmit content. It sets out when a hosting provider is exempt from liability and what it must do once it becomes aware 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 your protection; the clause merely describes it.
How do you disclose affiliate links and sponsored content?
Disclose the commercial relationship clearly, next to the recommendation itself. In the Netherlands this is a legal obligation, not a courtesy.
The American Federal Trade Commission guidance that most templates cite is not the applicable rule here. Under Dutch law, failing to identify commercial content as such can be a misleading omission under the rules on unfair commercial practices in the Dutch Civil Code. Those rules apply to communication between businesses and consumers, and the ACM enforces them.
The Dutch Advertising Code (Nederlandse Reclame Code) also contains a specific code for social media and influencer marketing. It requires any relevant 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 these rules are applied.
How do you handle availability and service levels?
Promise a defined availability with a defined remedy, and exclude consequential loss above a stated cap. Avoid a blanket exclusion that contradicts promises made elsewhere on your site.
For software and online services, the honest clause separates what is promised from what is not. A defined availability, a defined remedy and 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. The two cannot both be true. The court will then resolve the contradiction against the party that drafted it.
What does a copyright notice achieve?
A copyright notice does not create the right: copyright arises when the work is created, without registration. The notice removes doubt about ownership and sets out which use is allowed.
That is useful for content that is likely to be copied. If you want to allow specific uses, say so. A bare “all rights reserved” invites the informal copying it was meant to prevent, and gives you nothing extra when you need to act.
How do you draft a disclaimer that stands up?
Four things separate a clause that survives from one that is set aside: a scope that matches the business, specific wording, plain language and regular maintenance.
Match the scope to your business
Before writing anything, list what your business actually does and where a user could suffer loss. Think of content published, advice given, goods sold, services delivered, data processed, third-party material hosted and links carried.
Each item on that list either needs a clause or does not. A clause covering a risk your business does not run adds length and weakens credibility. A missing clause is where the claim will land.
Be specific
Under Dutch law, an exclusion that names the loss it covers is far more likely to be upheld than a blanket exclusion of everything. The same applies to a cap linked to what the customer paid or to what your insurance covers.
Name the categories you exclude, such as loss of profit, loss of data or business interruption, and state the cap. A limitation is easier to defend than an exclusion, and both are easier to defend than silence.
Use plain language
The requirement that terms be clear is not decorative. Under article 6:238 paragraph 2 of the Dutch Civil Code, terms in consumer contracts must be drafted clearly and understandably. If the meaning of a term is in doubt, the interpretation most favourable to the consumer prevails.
Unclear wording therefore works against the drafter. Write short sentences, use ordinary words, and put the clause where it will be read.
Keep it up to date
A disclaimer describes your business at one point in time, and both your business and the law change. 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.
Review it at least once a year in any event. Show the date of the last revision on the page.
What do good and bad clauses look like?
The difference is easiest to see side by side. A weak clause excludes everything and defines nothing; a workable clause is more modest and more effective.
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 and excludes everything. That is exactly the kind of clause a court is invited to set aside.
A workable version states that the content is general information about Dutch law and does not take account of the reader’s circumstances. It says that the content is not legal advice and creates no lawyer-client relationship. It adds that the content reflects the law on the date shown and may be overtaken by later changes, and that the reader should obtain advice before acting. Each 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. A better clause says that the product is intended for a described use and that the instructions and warnings supplied with it must be followed. It adds that the seller does not guarantee results from use outside that purpose, and that nothing in the clause affects the buyer’s statutory rights or the seller’s product liability. That clause is accurate and enforceable, and it tells the customer something they can act on.
Which law and which court apply to a cross-border website?
Towards consumers abroad, a choice of Dutch law and a Dutch court does less than you might think. Two European regulations set limits that cannot be contracted away.
Take a disclaimer stating that Dutch law applies and that the courts of Rotterdam have jurisdiction. As soon as consumers in other countries are involved, that clause is doing less than its drafter believes.
Applicable law: the Rome I Regulation
The Rome I Regulation allows parties to choose the governing law. In a consumer contract, however, that choice may not deprive the consumer of the protection of the mandatory rules of the country where they normally live. This applies 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 its terms say. The choice of law remains useful for everything the mandatory rules do not cover. But it is not the end of the analysis.
Jurisdiction: the Brussels I bis Regulation
Under the Brussels I bis Regulation, a consumer living in an EU member state can sue the business either in the business’s member state or in their own. The business can 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 there is much more freedom. A clear choice of Dutch law and a chosen court are normally respected.
The practical conclusion is to keep the two situations apart. Use one set of terms for consumers, drafted with the mandatory rules of the markets you actually sell into in mind. Use another for business customers, where the choice of law and forum does most of the work.
Who enforces these rules, and what does a mistake cost?
Several Dutch regulators can look at the same web page, and a civil court can test your disclaimer as well. Fines and civil claims are separate tracks, and a business can face both.
It is easy to think of a disclaimer as something that only surfaces in a civil dispute. In practice, several regulators reach the same page:
- The ACM supervises consumer law, unfair commercial practices and the cookie rules. It can impose fines and binding instructions and publish its decisions.
- The Autoriteit Persoonsgegevens supervises the GDPR and the Dutch implementing act. Its powers range from investigations and orders subject to a penalty payment to the fines described above.
- The AFM supervises financial services. It will look at whether a website that presents itself as informational is in fact offering regulated advice.
- Complaints about advertising, including undisclosed commercial content, go to the Advertising Code Committee (Reclame Code Commissie). Its rulings are published and picked up by the press, even though it does not impose fines.
Alongside all of that sits the civil route, which is where the disclaimer itself is usually tested. A customer or a competitor relies on it, and the court decides whether the clause became part of the agreement and whether relying on it is acceptable in the circumstances. Work on the assumption that the same page will be read by a regulator and by a judge, each for their own purpose.
Do disclaimers in email, quotations and reports work?
The standard confidentiality footer in business email offers little protection. Clauses in quotations and reports work much better, because they are specific and presented at the right moment.
The confidentiality footer 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 comes after the recipient has already read it. It does not create an obligation for someone who never agreed to it.
It is not useless. It shows that the sender intended the material to be confidential, which can matter in a dispute about misuse. But you should not rely on it as protection.
Two related uses are worth more. A quotation or proposal should state expressly that it is subject to your general terms and conditions, name them, attach them and state a validity period. That is the moment when the terms are properly presented and the limitation of liability enters the contract.
A report, opinion or model delivered to a client should say who it was prepared for, on which assumptions and on which date. It should also state that no responsibility is accepted towards third parties who obtain it. This kind of restriction is normal professional practice, and courts take it seriously precisely because it is specific.
Which points should you check before you publish?
Run through the following checklist before the page goes live, and again at each annual review.
- The provider information required by 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, the customer can store them, and the acceptance is logged with the order.
- No clause claims 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 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 next review is in the diary.
The value of this exercise is not the list itself, but what it makes you do. You 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.
In summary
- A disclaimer has no independent legal force in the Netherlands. It only excludes liability as a contract term, within the limits of the Dutch Civil Code.
- Liability for your own intent or deliberate recklessness, and product liability towards the injured party, can never be excluded; consumers keep their statutory rights.
- In general terms, an exclusion can be annulled if it is unreasonably onerous or if the other party had no reasonable opportunity to read it. Online, that means providing the terms electronically in a form the customer can store.
- The provider information under article 3:15d, the privacy statement and the cookie rules are mandatory. A disclaimer is not, and it cannot replace them.
- Specific, capped clauses in plain language, presented before the contract is concluded and reviewed each year, are the ones that hold up.
Frequently asked questions
Is a disclaimer legally required in the Netherlands?
No. A disclaimer is voluntary. What is required is something else: the provider information under article 3:15d of the Dutch Civil Code, a privacy statement wherever personal data are processed, and information and consent for cookies and similar technologies. Many businesses combine these with a disclaimer on one page. That is fine, as long as it remains clear which parts are mandatory.
Can I copy a disclaimer from another website?
That is a poor idea, for two reasons. The text is someone else’s copyright work. More importantly, it describes someone else’s business and someone else’s risks. Many templates in circulation are written for American law. They contain concepts that do not exist here, alongside blanket exclusions that Dutch law will not enforce. You end up with a false sense of protection at exactly the points where you need 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 it is a real part of your defence. It does not help where the information was knowingly wrong, where you presented yourself as giving individual advice, or where the statement was a misleading commercial practice towards a consumer.
Where should the disclaimer sit on my website?
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 limitation of liability that actually applies belongs in the general terms and conditions that the customer accepts before ordering, and that 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 must be drafted for your business and tested against the rules on general terms and conditions. That is a small piece of work compared with discovering, in a dispute, that the clause you relied on has been annulled. We draft and review disclaimers, general terms and conditions and other website documents for Dutch and international businesses; you can read more on our IT and technology law practice page.
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