Nowadays, reputational damage due to incorrect statements on the internet is a frequent occurrence. In this case, negative messages about a Dutch school had been posted on Facebook and other sites. The main issue was whether these publications were unjustified. Dutch media law lawyer Thomas van Vugt explains with reference to a recent Dutch ruling how it is determined whether wrongful publications have caused reputational damage.
In this case, the former teacher had a long-running conflict with the school where he had been employed in 1998. In that year, the teacher became unfit for work, which according to him was due to the school’s aggressive culture. For example, he alleged that during his employment, he had been fired at with a pistol in class and that his bedroom window had been fired at with an air rifle. The school had always denied liability.
The teacher could not let go of the issue. In 2015, he was demonstrating near the school – coincidentally during an education conference – with a sign reading “Student shoots teacher / Cover-up culture.” He also created two Facebook pages called “Cover-up culture” and “School terror.” He posted various messages on these pages in which he connected the school with pupil aggression and a cover-up culture. He posted similar messages on other websites.
The school had had enough of this and brought preliminary relief proceedings against the teacher. The Dutch Court in preliminary relief proceedings was clear: the teacher has the right of freedom of expression. However, this is not an absolute right. It is limited by laws to protect the rights or reputation of others, in the interest of national security, or to protect public order, public health or public morals.
The teacher’s Dutch lawyer held the view that his expressions were in the interest of society, but the Court took a different view. The alleged cover-up culture had not been proven. Also, the teacher’s other accusations had not been proven. In that case, the right of freedom of expression does not outweigh the school’s interests not to be exposed lightly to accusations and unwanted publicity.
The teacher’s publications damaged the good name of the school and are therefore unlawful. The demand for a ban on further negative publications was allowed. Moreover, if the teacher infringes the ban, he will have to pay a penalty of €250 for each infringement.
The Court considered in this case that the facts of which the school was accused were not true. This is called slander. The Court points out as an aside in the judgment that the deliberate and unnecessary blackening of a (legal) person by publicly accusing him of certain facts (such as cover-up culture) may also be unlawful if the facts are true. This is called defamation.
In each form of reputational damage, the Court weighs up the interests of the party publishing the messages and interests of the party whose good name is being damaged. The dividing line between critical publications and a personal witch-hunt is not always very clear. AMS Advocaten are specialised in disputes around reputational damage both at home and abroad.