Straffrettsansvar for innlegg på sosiale medier i Nederland

A social media post is a criminal offence in the Netherlands when it meets the elements of an offence in the Dutch Criminal Code (Wetboek van Strafrecht, Sr): most often insult (belediging), defamation (smaad), slander (laster), threats (bedreiging), group insult or incitement to hatred, or doxing. The main exception is freedom of expression: Article 7 of the Dutch Constitution and Article 10 of the European Convention on Human Rights protect much sharp and offensive speech, as long as it does not meet those elements.

Insult, defamation and slander are complaint offences: under Articles 269 and 66 Sr, the Public Prosecution Service can only prosecute if the victim files a complaint within three months after learning of the statement. Threats, doxing and the discrimination offences can be prosecuted without a complaint.

Which online statements are criminal offences?

The same offences apply online as offline. Because a post is usually written or visual, it often falls under the heavier written forms of the offences.

Under Article 267 Sr, the prison sentences for insult can be increased by one third if the target is the King or a member of the royal family listed there, a civil servant during the lawful exercise of their duties, or a public body. Under Article 285d(2) Sr, the doxing penalty is also increased by one third if the target is, for example, a mayor, a judge, a lawyer, a journalist or a police officer.

Threats fall under Article 285 Sr, which covers threatening a person with, among other things, a serious offence against life or physical integrity. A threat from an anonymous account is still a threat; account data can be obtained in a criminal investigation. Persistent targeting of one person can be stalking (belaging) under Article 285b Sr, and distributing sexual images without consent is an offence under Article 254ba Sr.

When is defamation not punishable?

Under Article 261(3) Sr, there is no defamation if you acted in necessary defence, or if you could assume in good faith that the imputed fact was true and that the general interest required the publication. A journalist or whistleblower who has checked the facts is therefore in a different position from someone who repeats a rumour. Our article on fornærmelse, ærekrenkelse og bakvaskelse beskriver elementene mer detaljert.

How is freedom of expression weighed?

Freedom of expression is the starting point. Article 7 of the Constitution protects publishing opinions without prior permission, subject to liability under the law, and Article 10 ECHR also protects statements that offend, shock or disturb.

For group insult, Supreme Court case law uses three steps. The court first asks whether the statement, in isolation, is insulting. It then asks whether the context, such as a contribution to public debate or a religious or artistic expression, removes the insulting character. Finally it asks whether the statement was nevertheless unnecessarily offensive (onnodig grievend). A political point made in coarse language often survives; pure abuse of a person or group does not.

The size of the audience, whether the account is public, whether the post was a one-off or part of a campaign, and whether the target is a public figure who must accept more criticism all feed into this assessment. A video with a caption is judged as a whole.

Does it matter whether you state an opinion or a fact?

Yes: defamation requires the imputation of a specific fact, while an opinion is at most an insult. Calling a competitor incompetent is a value judgement; stating that the competitor stole from clients is a factual imputation that can be written defamation, or slander if you know it is untrue.

Almost every offence requires intent (opzet), but conditional intent is enough: knowingly accepting the considerable chance of the prohibited result. Posting a specific accusation without checking it, when its falsity is obvious, can meet that test. The more concrete the allegation, the more you need to be able to prove it and to explain the general interest in publishing it.

Sharing is a new act of publication. Reposting or forwarding a defamatory or discriminatory statement, especially with an endorsing comment, can be an offence; Article 137e Sr expressly covers distributing discriminatory statements, except for the purpose of factual reporting. Juvenile criminal law applies from age 12, with different sanctions; see our article on unge mennesker og nettkriminalitet.

How does a complaint lead to prosecution?

For insult, defamation and slander, the victim must file a formal complaint (klacht) requesting prosecution, not just report the offence. Under Article 66 Sr, the complaint period is three months from the day the victim learned of the statement.

No complaint is needed if the insult concerns one of the targets in Article 267 Sr, or a member of an elected representative body (Article 269(2) and (3) Sr). Threats, incitement, doxing, stalking and the discrimination offences are never complaint offences; the Public Prosecution Service acts on its own initiative.

Many cases about a single post end in a penalty order (strafbeschikking), usually a fine or community service, without a hearing. Under Article 257e of the Code of Criminal Procedure (Sv), you can object within 14 days. Paying it means accepting it, and it can affect a later application for a certificate of conduct (VOG). In contested cases, the court can impose a fine, community service or a (suspended) prison sentence, and the victim can join the proceedings to claim damages. See our strafferettslige guider for prosedyren.

Which civil remedies are available?

A post can be unlawful under Article 6:162 of the Dutch Civil Code (BW) without being a criminal offence. The civil court weighs freedom of expression against the protection of honour, reputation and private life, without requiring criminal intent.

In preliminary relief proceedings (kort geding), the court can order removal of a post within a set period on pain of a penalty payment (dwangsom), order a rectification and prohibit repetition. If the author is anonymous, a claim can be directed at the platform to remove the content and, in suitable cases, to disclose account data. Under the GDPR, you can also ask a search engine or platform to delist or erase personal data, subject to the balance with freedom of expression. See our articles on ærekrenkelse og omdømmehåndtering på nett og online trakassering.

Where do companies, employers and platforms stand?

A company can commit an offence. Under Article 51 Sr, an offence can be attributed to a legal entity, and those who ordered it or exercised actual leadership over it can be prosecuted alongside it, for example where a corporate account publishes a discriminatory campaign.

Under Article 6:170 BW, an employer is liable for damage caused by an employee’s fault if the task increased the risk of that fault and the employer had control over the conduct, which covers posts from a company account. Posts from a private account can justify employment measures, but the threshold for dismissal is high; a clear and communicated social media policy is the best prevention.

Platforms are governed by the EU Digital Services Act, which has applied in full since 17 February 2024. A hosting platform is not liable for user content as long as it has no actual knowledge of illegal content and removes it promptly once it does; there is no general duty to monitor. A properly substantiated notice creates that knowledge, so it is the key step for a victim.

What should you check before you post?

• Is it an opinion, or a factual allegation about an identifiable person that you can prove?
• Does the publication serve a general interest that you can explain (Article 261(3) Sr)?
• Does it target a group because of race, religion or belief, sexual orientation or disability?
• Does it contain someone’s address, workplace or phone number in the context of a conflict (Article 285d Sr)?
• Are you sharing someone else’s statement, and do you endorse it?

Hva bør du sjekke hvis du er målet?

• Have you secured screenshots showing the account, date and URL, and who shared the post?
• Is the offence a complaint offence, and is the three-month complaint period still running (Article 66 Sr)?
• Have you sent a substantiated removal notice to the author and the platform?
• Do you want removal and rectification quickly (kort geding), prosecution, or both?
• Can you document the damage to your reputation or business for a damages claim?

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

We act both for people accused because of something they posted and for people and businesses harmed by someone else’s post.

• We assess whether a post meets the elements of an offence or is unlawful under Article 6:162 BW.
• We draft and file the complaint with the police within the three-month period.
• We send removal and rectification notices to the author and the platform.
• We start preliminary relief proceedings for removal, rectification and a ban on repetition.
• We assist suspects at the police interview, object to a penalty order within 14 days and defend you in court.

Sammendrag

• A post is an offence when it meets the elements of, for example, insult, defamation, slander, threats, group insult, incitement or doxing.
• Insult, defamation and slander require a complaint within three months (Articles 66 and 269 Sr), except for public officials and elected representatives.
• Courts weigh freedom of expression in steps; an unnecessarily offensive statement is not protected by context.
• Sharing is a new publication, and companies can be prosecuted too (Article 51 Sr).
• Civil proceedings for removal and rectification often work faster than a criminal complaint.

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