Social media posts and the law: defamation, portrait rights and your job

Under Dutch law, a social media post is a publication, just like a newspaper article. What you say can be defamation under Articles 261 and 262 of the Dutch Criminal Code (Sr) and an unlawful act under Article 6:162 of the Dutch Civil Code (BW); what you show can breach someone’s portrait rights (portretrecht); and what you disclose about your employer can cost you your job. A small audience or a closed group reduces the seriousness of a breach, but it does not take away your liability.

Can you be held liable for what you say about others?

Yes. Damaging someone’s reputation with untrue or unsupported allegations can be both a criminal offence and a civil wrong. Defamation (smaad) and written defamation (smaadschrift) fall under Article 261 Sr; where you knew the allegation was false, it is the more serious offence of slander (laster) under Article 262 Sr.

In a civil case, the court weighs your freedom of expression (Article 10 of the European Convention on Human Rights) against the other person’s right to reputation. The key question is usually how well the allegation was supported by the facts available to you when you posted it. The court can order you to remove the post, publish a rectification under Article 6:167 BW, and pay damages.

Are you responsible for reposting someone else’s message?

Yes. Sharing is itself a publication, so forwarding an unlawful statement to a new audience can make you liable under Article 6:162 BW, even if you did not write the original words. A reaction such as “this is true” or adding your own comment makes it more likely that the court treats the statement as yours.

What are the rules for posting a photo of someone else?

For a portrait made without the person’s commission, such as a street photo, Article 21 of the Copyright Act (Auteurswet) allows publication unless the person shown has a reasonable interest in opposing it. A photo taken in a public place is not automatically free to publish: a person’s privacy, the context and a negative caption can all create such an interest.

Where the portrait was commissioned by the person shown, Article 20 of the Copyright Act requires their consent before publication. Separately, the copyright in a photo belongs to the person who took it, so reposting an image you found online without a licence normally infringes the photographer’s rights, whoever is pictured.

Can a post about work cost you your job?

Yes. Posting confidential information about your employer, a client or a case can breach a confidentiality clause and your duty to act as a good employee under Article 7:611 BW. In serious cases an employer may dismiss you summarily for an urgent reason (dringende reden) under Article 7:678 BW; in other cases it may ask the subdistrict court (kantonrechter) to end the contract for culpable conduct.

Courts look at the same factors each time: how public the post was, how identifiable the employer, how serious the content, whether there was a social media policy you knew about, and whether a warning would have been the proportionate response. Dismissals have been upheld for insulting or leaking posts, and rejected where a post was mild, private in character or provoked by the employer.

What should you check as an employee?

• Read your employment contract for a confidentiality clause and any rules on social media.
• Check whether your employer has a social media policy and whether it was communicated to you.
• Never post names of clients, colleagues or cases, or internal figures.
• Check your privacy settings, but assume a closed group can be screenshotted.
• If your employer confronts you with a post, do not sign anything on the spot; summary dismissal must follow promptly, so the employer may push for a quick answer.

What should you check as an employer?

• Put a written social media policy in place and make sure every employee receives it.
• Secure the post with dated screenshots before it is deleted.
• Hear the employee before you decide, and weigh whether a written warning is the proportionate response.
• If you choose summary dismissal, give it immediately and state the urgent reason, as Article 7:677 BW requires.
• Do not post or comment about the employee yourself; that can weaken your position.

Do old posts come back to affect you later?

Yes. A Certificate of Conduct (VOG) from Justis does not look at your social media history, but an employer’s own search, an insurer’s investigation or a custody case before the family court often does. Content posted years earlier is regularly submitted as evidence in such proceedings.

Deleting a post is sensible but not a cure: screenshots and archived copies outlive it. Under Article 17 of the GDPR you can ask a platform or search engine to erase personal data about you in some situations, but that does not remove copies other people have saved.

What can we do for you with a social media dispute?

Our civil lawyers act for people who posted something and for people who were the subject of a post.

• We assess whether a post is defamatory or breaches portrait rights.
• We draft a demand letter requiring removal and rectification within a short deadline.
• We start summary proceedings (kort geding) for removal of a post where a quick decision is needed.
• We assess an employer’s social media policy, or a dismissal based on a post.
• We defend you against a claim or a criminal complaint about something you posted.

Summary

• Defamation, slander, portrait rights and copyright apply to social media posts as to any other publication.
• Reposting someone else’s content can make you liable yourself.
• A post about your employer, a client or a case can be a ground for dismissal, especially where a clear policy exists.
• Deleting a post limits further spread but does not undo a publication that has already been seen or saved.

Frequently asked questions