A negative review is not unlawful simply because it is negative: customers may be dissatisfied and say so sharply. A review becomes an unlawful act (onrechtmatige daad) under Article 6:162 of the Dutch Civil Code (BW) when it states false facts, makes unsupported allegations, or forms part of an anonymous campaign designed to damage a business rather than inform other customers.
Table of contents
How do Dutch courts weigh a review?
They balance the reviewer’s freedom of expression, protected by Article 10 of the European Convention on Human Rights, against the business’s right to honour and reputation. Factors include the seriousness of the allegations and their consequences, how well they are supported by facts known at the time, the wording, the reach of the publication and the public interest in the information.
Where does the line usually fall?
An opinion about service, price or quality stays protected, even when expressed sharply. A factual claim that is untrue (that a business defrauded a customer, is under police investigation, or that a professional is unqualified) is not protected, and the reviewer must show a factual basis for it.
Two patterns tip the balance further: several reviews posted by one person under different names, which suggests a pattern of complaints that does not exist, and a review posted as leverage in a payment dispute, which reads as pressure rather than information.
What can you claim if a review is unlawful?
Removal, rectification, an injunction against repetition backed by a penalty payment (dwangsom), and damages under Article 6:162 BW. Summary proceedings (kort geding) before the preliminary relief judge of the district court are the usual route, because the damage continues for as long as the review stays online.
Can you unmask an anonymous reviewer?
Yes, a platform can be ordered to disclose the data it holds about a poster. In Lycos/Pessers the Dutch Supreme Court (Hoge Raad) set four conditions: the content is sufficiently likely to be unlawful and harmful, you have a genuine interest in the data, there is no less far-reaching way to obtain it, and the balance of interests favours disclosure (ECLI:NL:HR:2005:AU4019, 25 November 2005).
What should you do first?
Secure the evidence before anything can be deleted: dated screenshots of the review, the reviewer’s profile and the surrounding page. Then report the review through the platform’s own tool; under the EU Digital Services Act, platforms must offer a way to report illegal content and must give reasons for their decision.
If that fails, a lawyer’s letter to the reviewer, where identifiable, is the next step; summary proceedings come last, not first. Be careful with a public reply: disclosing details of the customer’s file creates a GDPR problem on top of the reputational one.
What should you check as a business?
- Does the review state facts, or only an opinion about service, price or quality?
- Can you show, with documents, that the facts stated are untrue?
- Have you saved dated screenshots of the review and the reviewer’s profile?
- Have you reported the review through the platform’s notice procedure?
- Does a public reply avoid personal data about the customer?
What should you check as a reviewer?
- Does your review describe what you actually experienced?
- Are facts and opinions clearly separated?
- Can you back up each factual statement with an invoice, e-mail or photo?
- Have you posted under one name only?
- Is the review independent of a pending payment dispute?
What can we do for you with an online review?
Our IT lawyers act for businesses and reviewers alike. We can:
- Assess whether the review is unlawful under Article 6:162 BW.
- Draft the notice to the platform and the letter to the reviewer.
- Claim disclosure of an anonymous poster’s data on the Lycos/Pessers criteria.
- Start summary proceedings for removal, rectification and a penalty-backed injunction.
- Defend you as a reviewer against a removal or damages claim.
Summary
- A review is unlawful when it states untrue facts or forms part of a campaign to damage a business, not merely because it is negative.
- Courts weigh freedom of expression against reputation, based on seriousness, factual support, wording and reach.
- You can claim removal, rectification, an injunction with a penalty payment and damages, usually in summary proceedings.
- Platforms can be ordered to disclose an anonymous poster’s data under the four Lycos/Pessers conditions.
Frequently asked questions
Can a business force the removal of a true but harsh review?
No. A harsh but factually accurate opinion is protected by freedom of expression under Article 10 ECHR, however unwelcome it is for the business.
How long does it take to get an unlawful review removed?
A platform’s own reporting route can work within days. Summary proceedings usually lead to a ruling within a few weeks, depending on the platform and the court’s schedule.
