Freedom of expression and the right to reputation: finding the right balance

Freedom of expression is of great importance. On the other hand, everyone also has the right to protection of his or her reputation. Media law cases in the Netherlands often involve a delicate balance between these two fundamental rights both protected under the European Convention on Human Rights (“ECHR”). In this contribution, we will discuss this balance, the relevant legal framework in the Netherlands, and two interesting recent Dutch media law cases that illustrate this.

The Dutch legal framework

Article 8 of the ECHR safeguards the right to privacy: based on this provision, individuals have the right to protection of their private and family life, confidential correspondence, and to their reputation. Article 10 of the ECHR protects freedom of expression: this encompasses the right to receive and impart information and to hold and express views and opinions via various media.

These two fundamental rights sometimes conflict, especially in media matters in which the media on the one hand have the right and duty to inform the public as a public watchdog and on the other hand must respect the privacy and reputation of the persons or companies reported in such matters. Neither right is absolute – which one prevails, depends on the facts of the case and the matter at hand.

In the Netherlands, the right to privacy sometimes prevails over the right to freedom of expression: parties may seek an injunction or rectification of a publication based on article 6:162 of the Dutch Civil Code (“DCC”). As noted, both rights are not absolute and the Dutch Supreme Court held that when balancing these interests, the following factors should be taken into account:[1]

1. the nature of the published accusations and the seriousness of the expected consequences for the persons the accusations relate to;
2. the seriousness – viewed from the public interest perspective – of the accusations which the publication is intended to expose;
3. the extent to which, at the time of publication, the accusations were supported by relevant facts;
4. the wording or phrasing of the accusations in relation to factors I until III;
5. the degree of likelihood that, without the publication, the objective pursued could have been achieved by other, less damaging means, with a reasonable chance of timely success; and
6. the possibility to limit the negative impact for the person affected by the publication, taking into account the likelihood that the publication (relevant information) would have entered the public domain without making it publicly available to the press.

Dutch case law: balancing fundamental rights in practice

Two recent decisions by different Dutch courts illustrate this difficult balancing test.

The first decision was rendered by the Amsterdam Court of Appeal on 28 January 2025 and concerns episode 5 of a documentary series created by Submarine B.V. (“Submarine”), a Dutch production company creating various movies and documentaries. The episode is about a Surinamese-Dutch individual serving a prison sentence in the United States for the hit murder of his wife and stepdaughter, and initially focuses on whether this person had been wrongfully convicted. Subsequently, the documentary discusses allegations of sexual misconduct as one of the reasons for his continued imprisonment. Although this regards allegations of a very serious nature, insufficient research had been conducted: the individual had never been convicted nor subjected to formal legal investigations regarding sexual misconduct. In 2023, the Court of Appeal had already rendered a decision in proceedings on the merits and granted an injunction against Submarine to cease and desist the broadcast of this episode under penalty of a judicial fine.[2] In 2024, Submarine tried to contact the individual’s attorney and requested a response to similar allegations in a new version of this episode of the documentary that Submarine wished to broadcast. The attorney refused, amongst others, because the Court of Appeal had already granted an injunction and the individual therefore considered the matter concluded. Submarine, however, still intended to broadcast the amended version of episode 5 on Dutch television despite the earlier decision and valid injunction, which resulted in preliminary injunction proceedings to prevent the broadcast of this amended version.

In the 2025 decision, the Court of Appeal held that broadcasting the amended episode fell under the scope of the 2023 injunction, and was therefore unlawful and not allowed.[3] The Court of Appeal, amongst others, noted that the accusations in the episode were (still) of an extremely serious nature and were (still) not sufficiently supported by relevant evidence. The individual was furthermore not provided an adequate opportunity to react to the amended version of the episode: he was not able to watch (preview) it and respond to the content due to his current imprisonment. The documentary additionally failed to draw a clear distinction between factual reporting and speculative claims. In this case, the right to reputation prevailed over the right to freedom of expression, despite the fact that changes were made in the episode and Submarine tried to enter into a conversation with the individual involved.

The second decision had the opposite outcome of this balancing test. In this case, preliminary injunction proceedings were lodged at the Midden-Nederland District Court, location Lelystad, against Dutch public broadcasting company KRO-NCRV.[4] The television episode in this matter reported on wrongdoings in the health care system, specifically with respect to a company that provided health care services to the elderly, former addicts and persons with psychological problems. The health care provider and its two former directors, as plaintiffs in this case, argued that the episode broadcast by KRO-NCRV was unlawful because it unfoundedly damaged their reputation, amongst others by incorrectly labeling them as “care fraudsters” and “care cowboys” and raising non-factual, serious allegations regarding financial mismanagement and inadequate care. The plaintiffs requested the court to grant an injunction to prevent further display of the episode and an obligation on KRO-NRCV to rectify.

The court held that the episode and other contributions related to the episode were not unlawful and did not grant the injunction or require a rectification. The court applied the noted balancing test determined by the Dutch Supreme Court and, amongst others, took into account that the episode addresses a matter of significant public interest, particularly because it concerns the quality of care provided to vulnerable individuals and that the statements included in this publication were based on facts supported by sufficient evidence, including various investigative reports and regulatory findings. Additionally, the plaintiffs were given the opportunity to respond before the episode was first broadcast, fulfilling the journalistic standards of fairness. The court therefore held that the right to freedom of expression (including the right to be informed about potential mismanagement in the health care sector) outweighed the right to privacy (reputation) of the former directors in this matter.

Conclusion

These two recent Dutch court decisions demonstrate that balancing the right to freedom of expression and the right to protection of reputation is delicate and requires considering all relevant facts and circumstances, including whether a publication is supported by facts and sufficient evidence at the time of the publication.

In 2022, Taylor Wessing successfully represented Solarstudio before the Midden-Nederland District Court and obtained an injunction in preliminary injunction proceedings against a former employee that shared serious, unfounded allegations via email to customers of our client[5]. In that case, the accusations were not sufficiently supported by evidence, which made them unlawful against Solarstudio. If you need any help assessing if a publication is lawful in light of the relevant facts and circumstances, do not hesitate to contact our media team at Taylor Wessing.