Online Defamation & Insult Legal Views
Anyone who is dissatisfied with another person or company can respond to that person or company on a website, blog or mailing list. That is allowed, but if it affects someone’s honor or good name, it can be insult, defamation or defamation.
Deliberately affecting someone’s honor or reputation by spreading a certain fact is a crime: libel. If this is done in writing, and publication on a website is “written”, the offender is guilty of libel. A related crime is slander : the deliberate distribution of something that the perpetrator knows is a lie.
A defense against defamation is that the blamed fact is true and that it was in the public interest to spread this fact. What exactly this “public interest” is, depends almost entirely on the case.
Smash or insult?
An insult is a general negative statement about a person. Smaad is a specific statement that tries to harm someone’s good name. If the statement is not true, it is called slander.
Reprimand, insult and defamation are all criminal offenses. The line between insult, defamation and defamation is often difficult to draw. An insult is a general negative statement about a person. Whoever says, “Jansen is a thief”, insults Jansen. In defamation , the statement becomes specific and the purpose is to affect the honor or good name of that person. In the previous example, the insult would be defamation if it was specifically said: “Do not buy at Marktplaats.nl from Jansen, because he does collect your money but does not send the items”. You then accuse him of scams .
If the narrator knows that what he is saying is not true, then it is called slander. So telling the truth can never be slander, but sometimes it is defamation.
Telling the truth can also be reproach. Only when the statement is in the public interest is it permitted.
Many people think that as long as you don’t tell lies, your statements cannot be reproach. That is incorrect. A true statement (“Jansen is a drunk”) can also be libel. After all, the criterion is whether the assertion affects Jansen’s honor or good name. And if no one is inconvenienced by Jansen’s drinking, his reputation will certainly be affected by that claim.
What is a valid excuse is that it is in the public interest to make the statement . For example, if Jansen insists on being against alcohol abuse, it is justified to report that he himself drinks a lot regularly. The same applies if Jansen causes problems due to his alcohol abuse.
More generally, the court uses the criterion of whether there is a sufficient basis in the facts . This means that an expression must be substantiated on the basis of the facts, and that facts and opinions must be clearly separated from each other.
Opinion or fact?
The line between facts and opinions is difficult to draw. A purely factual statement cannot be reproach.
Everyone is free to give their opinion on a certain subject, so also for example about the service at a store or the use of cheap workers in third world countries by a company. Action groups have been doing this for years, and it doesn’t matter whether it is via a poster, a brochure or a website.
As far as it concerns factual matters, that opinion must of course be correct. If a company uses child labor, it is best to report this. However, if someone claims that while it is not true, the image of that company has been wrongly damaged. And anyone who harms another person must compensate this.
However, it will often not be easy to indicate where a fact ends and an opinion begins. It is often about the interpretation of that fact, for example when it comes to child labor, or whether the circumstances in which pigs are fattened are acceptable or not. The holder of those pigs will believe that this is the case, the campaigners claim the opposite.
When is a claim insulting or insulting?
Determining whether something is defamation or insult is only possible by weighing all the facts of the case. There are no hard rules.
It is very difficult to give a general rule about whether something is defamation, slander or insult. Case law shows that a trade-off is always made. How does the statement relate to the facts (is it true but exaggerated, not true at all), how important was it to tell this, and what kind of position do the parties have? It is not always as simple as “calling a cop a rat is insulting a civil servant in function. “
Dierenbeul an insult
In 2005, for example, the judge considered it an insult to call the director of the Erasmus Animal Experimental Center an animal hangman. This director was on a website with name and photo, which also included fabricated quotes such as “I torture so many animals for my ‘work’. Although animals were tested at this center, this director turned out to be committed to alternatives. That is why the judge came to the conclusion in the weighing of interests that this was insulting.
Quack no defamation
In February 2006, the Dagblad Tubantia criticized an alternative cure for cancer, and was challenged by the creator of that cure for defamation. The judge ruled that “in view of the large amount of freely accessible data, it can be considered to be generally known that [Challenger] and his cellular medicine plus the scientific breakthrough claimed by him are highly controversial and give off a scent of quackery.”
On that basis, the judge came to the conclusion “The articles do not contain an untrue word and are not factually incorrect either. The tone has been retained critically, but that is allowed in the light of what the court has determined about [The Plaintiff] and his controversial pretensions.” The newspaper was acquitted .
Quack is not a slander
In another case concerning alleged quackery, the Association against Quackery was convicted on appeal because they had designated an orthomanual healer as quack. It was not certain that this technique was really ‘useless’, which according to the Amsterdam Court was important to prove that something is quackery.
The Supreme Court returned to this in 2009 . The list of the Association with the twenty largest quacks was drawn up on the basis of clear criteria and contributed to a social debate about alternative treatment methods (such as orthomanual therapy). It was therefore not unlawful to make this publication, and the Court’s judgment was set aside.
Shame and parody
In a parody, a statement about someone is less likely to be seen as libel. Certainly well-known people must “be able to do something”
A parody is a humorous work in which another work is ridiculed. That is of course also possible with a person: think of the parodies of famous politicians or a pastiche of the writing style of a certain writer. This can of course experience the parody as insult or even libel.
The border is again difficult to draw here. Certainly well-known people must “be able to do something”. But if the parody is not clearly recognizable as a joke, but, for example, seriously attempts to portray someone else – and insulting it – there may be an illegal parody. For example, in 1994, negative statements about house music from a pastor on the radio were processed into a house number. Because the quotes were severely cut and distorted, his statements seemed absurd, which made him crazy. The judge found that this affected the pastor’s good name.
Using ‘stolen’ material to get you right in a libel case is a risk.
A good way to prove yourself immediately is to use documents from that company that provide evidence for your position. For example, the Scientology movement has been accused for years of trying to eliminate its opponents with all sorts of unfriendly practices. To prove this, these opponents used documents from Scientology itself, which, for example, described how lawsuits can be used to make someone’s life miserable. These documents were ‘leaked’ by dissatisfied members, or made public through a lawsuit.
After publishing these documents on a number of websites, Scientology started legal proceedings against the owners of those websites for infringement of their copyright on those documents. After all, they had not given permission for publication. The owners then adapted their websites and replaced the documents with self-written critical texts with quotes from those documents. To quote from someone else’s work does not require approval, so there was no longer an infringement of copyright.
Therefore, anyone who takes over leaked documents on their website runs the risk of being taken to court. There is, however, another risk, namely that the ‘leak’ can be traced by the publication. A well-known trick to detect a leak is to give all suspect employees a slightly different version of a document, for example with the amounts in a table always slightly changed. The website is then checked to see which amounts from that table are listed there, and to whom the version is given.
In the case of defamation or defamation, the court may order that the provider must disclose the identity of the claimant to the complainant.
On the Internet it is easy to say things anonymously to a large audience. That also makes it a lot easier to say insulting or insulting things about others. Yet blogging under pseudonyms , for example, can be less anonymous than it seems.
To hold someone liable for unlawful behavior on the internet, their address details are required. In most cases, only his provider has that data. Based on case law, providers are obliged to provide this name and address data if the claimant has a reasonable interest in doing so. Read more in Issuing customer data and identifying users .
The trademark right
The use of brand names at critical sites can be seen as trademark infringement. There must be an objective reason to mention the brand name. Especially with logos, that reason is usually missing.
To get your website to the attention of as many people as possible, a nice domain name is very useful. And what could be a better domain name for a site that is against Microsoft than ‘microsoft-sucks.com’?
A problem that arises here is that the word “Microsoft” is a registered trademark. This means that no-one can use that word just like that, at least not when selling products or services. Anyone who sells their own word processor as “Microsoft Superword” commits trademark infringement.
The use of brand names at critical sites is also often seen as a trademark infringement, in particular by the criticized companies. According to Dutch law, it is also not permitted to use a brand commercially if this would damage the reputation of the brand. For example, in 1981 there was a case for the Supreme Court of Philips against the Haagse Post magazine. This magazine had published a critical article about the role of Philips during the Second World War, and naturally used the brand name “Philips”. The problem, however, was that they also featured the Philips logo on the front page, with the asterisks replaced by swastikas. The Supreme Court ruled that this was commercial use of the logo (also a brand),
The question of whether the use of a brand name in a domain name is now necessary to criticize is very difficult. On the one hand, it is immediately clear what the criticism is about, and the information is found faster. On the other hand, there are plenty of other names for critical sites.