Unlawful publication

Unlawful publication

Every day, hundreds, even thousands of news items appear on the Internet and in the newspapers. Sometimes, these messages contain serious accusations. Fraud, for example, theft, or corruption. Sometimes these accusations go beyond the boundaries of the admissible and they are unlawful. In that case, you’re entitled not only to compensation of damages, but also to rectification. The removal of articles published on the Internet can also be demanded.

Freedom of expression vs. protection of honour and good name

The legal framework is always the same in the many court cases concerning unlawful publication. The judge weighs the interests in order to determine whether the publication in question is unlawful. It’s always a “battle” between two fundamental rights: the right to the journalist’s freedom of expression and the right to the protection of the honour and good name of the person being accused. Each time, it depends on the exact circumstances of the case as to which right carries more weight.

Reputational damage: damages for immaterial suffering

The damages caused by unlawful publication can consist of various components. The most important are often revenue damages, reputational damage and/or immaterial damage, sometimes referred to as non-economic damage. In practice, jurisprudence chapters containing examples of decisions concerning non-economic damage are often used as a basis. Many factors play a role in the determination of the amount of the non-economic damage. This sometimes makes the exact amount of the compensation difficult to determine.

Demanding removal and rectification in interlocutory proceedings

If an accusation is unlawful, then rectification (if it concerns a publication on Internet) and removal can be demanded. This is nearly always done in the form of interim relief measures because of the need for speed. But not every case lends itself to interlocutory proceedings. This is so when the case is complicated and there are problems with producing evidence, for example. In those cases, primary proceedings (on the merits of the case) may be the best option.