Smaad en Laster: Defamation Law in the Netherlands

Dutch law treats an attack on someone's reputation in two entirely separate ways, and choosing between them is the first real decision. Criminal defamation (smaad en laster) sits in artikel 261 and artikel 262 of the Wetboek van Strafrecht (Sr), where the state prosecutes and the outcome is a punishment. The civil claim for an unlawful act (onrechtmatige daad) sits in artikel 6:162 of the Burgerlijk Wetboek (BW), where the person harmed sues and the outcome is a correction, a removal or money.

The two routes do not share entry requirements. The criminal route needs a formal complaint (klacht) from the victim within three months of learning of the statement, and then leaves the decision to prosecute with the public prosecution service (Openbaar Ministerie). The civil route needs neither, and it is the route that produces the remedies most people are actually looking for.

This page sets out what each criminal offence requires, what a civil court can order, which court hears the claim, and how Dutch judges weigh freedom of expression against reputation. A third and lighter offence, simple insult (eenvoudige belediging) under artikel 266 Sr, has its own page on belediging. Every euro figure below is the amount applicable from 1 January 2026.

Information last verified on 21 July 2026. This page provides general legal information about Netherlands law and does not constitute legal advice in an individual case.

What smaad requires under artikel 261 Sr

Artikel 261 lid 1 Sr defines smaad as intentionally attacking a person's honour or good name (eer of goede naam) by imputing a specific fact, with the manifest purpose of giving that imputation publicity. Four elements sit inside that one sentence, and a prosecution has to establish each of them.

• Opzettelijk. The attack must be intentional.
• An attack on eer of goede naam. The statement has to damage honour or reputation.
• Telastlegging van een bepaald feit. It must impute a definite, specific fact. This is the element that separates smaad from a bare insult, which is a different offence with a different maximum.
• Het kennelijke doel om daaraan ruchtbaarheid te geven. The manifest purpose of giving the imputation publicity. The statutory element is the purpose of publicising, not proof that publicity in fact followed.

Lid 2 creates a heavier form, smaadschrift, where the same conduct is committed through writings or images (geschriften of afbeeldingen) that are distributed, publicly displayed or posted up, or through a writing whose content is read out publicly. The article reaches images as well as text, and it reaches a spoken reading of a written text. The distribution, display or posting up is part of the element and not incidental to it. A published post, a flyer that is handed out or put up, and a captioned photograph that is circulated all fall inside lid 2 in a way an offhand spoken remark, or a printed sheet that never left a drawer, does not.

The penalty gap between the two leden is narrower than it looks. Smaad carries up to six months of imprisonment (gevangenisstraf) or a category 3 fine, and smaadschrift carries up to one year of gevangenisstraf or a category 3 fine. Only the custodial maximum doubles; the fine category is identical.

A category 3 fine is EUR 11,000 under the amounts applicable from 1 January 2026. A category is a ceiling rather than a tariff, because artikel 24 Sr requires the court to take the defendant's means (draagkracht) into account. How the categories are set and when they change is covered on the page on belediging.

The exception in artikel 261 lid 3, and why truth alone is not enough

Artikel 261 lid 3 Sr provides that neither smaad nor smaadschrift exists in so far as (voor zover) the maker acted in necessary defence, or could in good faith assume that the imputation was true and that the public interest (algemeen belang) required making it. It is written as an absence of the offence rather than as a defence the accused has to prove.

Read the second route carefully, because the statute uses en and not of. A good faith belief in the truth of the imputation is not sufficient on its own; the public interest limb has to be satisfied as well. A reader arriving from US or UK law will expect a standalone truth defence, and artikel 261 Sr simply does not contain one.

The words voor zover carry weight too. The exception operates per imputation and only so far as it reaches, so one publication can fall outside the offence in one respect and inside it in another.

Laster: artikel 262 Sr and the knowledge of falsity

Laster is not a separate description of conduct. Artikel 262 lid 1 Sr punishes a person who commits smaad or smaadschrift knowing (wetende) that the imputed fact is contrary to the truth. Every element of artikel 261 Sr therefore has to be present first, and knowledge of falsity is the single aggravating element laid on top of it.

That mental threshold is actual knowledge. Negligence, carelessness or a failure to check does not meet wetende on the face of the text, so the line between laster and smaad turns on what can be established about the maker's state of mind at the time. The maximum rises to two years of gevangenisstraf or a category 4 fine, EUR 27,500 under the amounts applicable from 1 January 2026, and artikel 262 lid 2 Sr allows the court to impose a disqualification from rights (ontzetting van rechten).

That power is narrower than it sounds. The article reaches only the first two of the five rights listed in artikel 28 lid 1 Sr, the holding of public office (het bekleden van ambten of van bepaalde ambten) and service in the armed forces (het dienen bij de gewapende macht). It does not reach the franchise, the right to act as raadsman or gerechtelijk bewindvoerder, or the practice of a profession.

Reading the two articles together produces a structural point rather than a stated rule. A maker who knew the imputation was false cannot at the same time have been able in good faith to assume it was true, so the artikel 261 lid 3 exception has no room left to operate once laster is made out.

What artikel 265 Sr does with an earlier verdict

Artikel 265 Sr attaches three rules to laster that can decide a case before the argument about knowledge even begins. If the person defamed has been irrevocably convicted of the imputed act, a conviction for laster is excluded. If that person was irrevocably acquitted of it, the acquittal counts as full proof that the imputed fact is untrue.

The third rule is procedural. Where a prosecution of the person defamed for the imputed act has been started, the laster prosecution is suspended until that case has been finally decided. A laster case built on an accusation of a crime can therefore stall for as long as the underlying criminal case runs.

Laster next to a false report to the authorities

A false written report to a public authority, intentionally submitted, is its own offence, lasterlijke aanklacht under artikel 268 Sr, and it is not a lesser one. The fault word in artikel 268 lid 1 Sr is opzettelijk, not the wetende that artikel 262 Sr uses.

Artikel 268 Sr is covered in full on the page on filing a defamation complaint.

The criminal route in short: a klacht, a deadline, and a decision that is not the victim's

Smaad, laster and eenvoudige belediging are klachtdelicten: under artikel 269 Sr they are prosecuted only on the klacht of the person against whom the offence was committed. The klacht period is three months, and under artikel 66 Sr it runs from the day the person entitled to file learned of the act, not from the date of publication. Those two rules together decide whether a criminal case is possible at all.

Filing a criminal report (aangifte) is not automatically the same act. Artikel 164 Sv provides that a klacht consists of an aangifte together with a request to prosecute, so a report filed without that request may not meet the klacht requirement. Even with a valid klacht, artikel 167 lid 2 Sv allows the Openbaar Ministerie to decline to prosecute on grounds derived from the algemeen belang. A valid klacht is a necessary condition for a prosecution and not a sufficient one, and the mechanics of filing are set out on the complaint page.

The civil route: artikel 6:162 BW

A civil claim under artikel 6:162 BW runs independently of the criminal route: it needs no klacht and is not bound by the three-month klachttermijn. It also requires none of the criminal elements. There is no need for an imputation of a bepaald feit, no need for a manifest purpose of publicity, and no knowledge of falsity has to be shown. A statement that is not smaad can still be an onrechtmatige daad.

The article is built from five elements, and a claim fails if any one of them is missing.

1. An onrechtmatige daad. Lid 2 gives three alternative forms: an infringement of a right (here the right to eer en goede naam and to respect for private life), an act or omission contrary to a statutory duty, or an act or omission contrary to what unwritten law regards as proper social conduct. Dutch publication cases are decided under that third limb.
2. No ground of justification. Lid 2 carries its own proviso, behoudens de aanwezigheid van een rechtvaardigingsgrond, and this is where freedom of expression under artikel 10 EVRM enters the civil case.
3. Attributability (toerekenbaarheid). Leden 1 and 3 require fault, or a cause that is for the actor's account by law or by prevailing opinion.
4. Loss (schade). There must be actual loss, financial or otherwise.
5. Causation. Lid 1 speaks of the loss the other party suffers as a result of the act.

Artikel 6:163 BW adds what is usually counted as a sixth requirement. There is no duty to pay compensation where the norm that was breached does not serve to protect against the loss the claimant actually suffered.

The civil route also has a deadline of its own, and it does not sit in Boek 6. Under artikel 3:310 lid 1 BW a claim for compensation prescribes (verjaart) five years after the start of the day following the one on which the injured party became aware both of the damage and of the person liable for it, and in any event twenty years after the event that caused it. Artikel 3:310 lid 4 BW adds that where that event is itself a criminal offence to which Dutch criminal law applies, the claim against the person who committed it does not prescribe for as long as the right to prosecute has not lapsed by limitation or by that person's death. So a civil claim survives the three-month klachttermijn, but it does not stay open indefinitely.

What a civil court can order

Financial loss is compensated under artikel 6:162 lid 1 BW itself. Non-financial loss (smartengeld) needs artikel 6:106 BW, and sub b of that article names damage to eer of goede naam expressly. The amount is set naar billijkheid, on an equitable basis by the court, so no figure can be read off the statute.

Artikel 6:106 sub c BW covers an attack on the memory of a deceased person. The people who may claim are the surviving spouse who is not separated from bed and board, the registered partner, and a blood relative to the second degree, and only where the attack was made in a way that would have given the deceased a claim for damage to eer of goede naam had they still been alive.

Correction is artikel 6:167 BW. Lid 1 lets the court order publication of a rectificatie in a manner the court itself prescribes, which is the statutory basis for orders about placement, prominence and duration. Two limits on that remedy matter more in practice than the remedy itself.

The first limit is subject matter. Artikel 6:167 lid 1 BW reaches an incorrect or misleadingly incomplete publication of gegevens van feitelijke aard, data of a factual nature. A rectificatie claim therefore does not lie against a pure opinion or value judgement, however damaging it is.

The second limit is cost, and it runs against the claimant. Lid 2 extends the remedy to the situation where the publisher is not liable because the publication cannot be attributed to them, being unaware of the inaccuracy. Lid 3 then allows the court in that situation to order the claimant to bear all or part of the costs of the proceedings and of publishing the rectification, so a claimant can win a rectificatie and still be left paying for it.

Kort geding: the fast route and its two limits

Most Dutch defamation disputes that need speed go to a kort geding, the summary procedure in artikel 254 Rv. Lid 1 gives the voorzieningenrechter power to grant an immediate provisional measure in all urgent matters (spoedeisende zaken) where, weighing the interests of the parties, such a measure is required. Lid 5 makes the kantonrechter competent to grant the same measure in cases that the kantonrechter would hear on the merits.

Two further provisions keep expectations realistic. Under artikel 256 Rv the voorzieningenrechter refuses relief if the case is not suitable for summary determination, which an evidence-heavy dispute about what was said and whether it was true may well not be. Under artikel 257 Rv a provisional decision does not prejudice the merits, so a removal order or a rectificatie obtained in kort geding is a provisional measure and not a final ruling on the truth of the statement.

Which court, and whether an advocaat is required

For a defamation claim, the EUR 25,000 subdistrict court (kantonrechter) threshold really is the operative rule. Artikel 93 Rv sends claims of at most EUR 25,000 to the kantonrechter under sub a, unless the legal title exceeds that amount and that title is disputed, and it sends claims of undetermined value to the kantonrechter under sub b where there are clear indications that the claim is worth no more than EUR 25,000. Sub c removes the threshold altogether for a closed list of contract types, employment, collective agreements, agency, tenancy, consumer sale and consumer credit among them, and a defamation claim is not on that list.

So a damages claim above EUR 25,000 goes to the district court (rechtbank). A rectificatie or removal claim carries no sum at all, which makes it a claim of undetermined value falling under sub b.

The consequence a claimant feels is in artikel 79 Rv. Parties may conduct proceedings in person before the kantonrechter, while in all other cases they may act only through a litigator (advocaat).

Artikel 255 Rv softens that in kort geding, and it is worth reading closely because of whom it softens it for. Lid 1 lets the defendant (de gedaagde) in a case falling under artikel 79 lid 2 Rv appear in person as well as through an advocaat, though expressly not through a gemachtigde who is not an advocaat, and lid 2 puts a voluntary appearance by the parties at the hearing on that same footing. Lid 3 does the same for other summary proceedings that are not begun by a dagvaarding. The article therefore says nothing that relieves a claimant who brings a kort geding by dagvaarding in a case falling under artikel 79 lid 2 Rv.

A worked example makes the line concrete. Someone claiming EUR 4,000 in smartengeld and EUR 3,000 in lost income after a false accusation posted in a neighbourhood group is claiming EUR 7,000 in total, which is under the threshold, so the case belongs to the kantonrechter and that person may run it without an advocaat. Raise the same claim to EUR 45,000 in lost contracts and it goes to the rechtbank, where an advocaat is required and the cost profile changes with it.

How Dutch courts weigh expression against reputation

Neither right starts ahead of the other. In HR 18 januari 2008, ECLI:NL:HR:2008:BB3210, commonly cited as Van Gasteren/Hemelrijk although the published judgment is anonymised, the Hoge Raad held that the answer to which right weighs more heavily in a given case must be found by weighing all the relevant circumstances of that case. Freedom of expression under artikel 7 Grondwet and artikel 10 EVRM does not in principle take precedence over the right to eer en goede naam and to respect for private life, and the same holds in reverse for the rights protected by artikel 8 EVRM.

The Hoge Raad also held that this is not a two-stage exercise. A court does not first decide which right prevails and then separately apply the necessity test in artikel 8 lid 2 and artikel 10 lid 2 EVRM to the result of that weighing. The weighing is one exercise.

The circumstances the weighing runs on come from HR 24 juni 1983, ECLI:NL:HR:1983:AD2221, conventionally known as the Gemeenteraadslid arrest, itself a kort geding about a rectificatie in a daily newspaper. The Hoge Raad named six gezichtspunten, expressly as an open rather than a closed list.

• (a) The nature of the published suspicions and the seriousness of the consequences to be expected for the person they concern.
• (b) The seriousness, seen from the public interest, of the abuse the publication seeks to expose.
• (c) The extent to which the suspicions were supported by the factual material available at the time of publication.
• (d) The way the suspicions were framed, in relation to factors (a) to (c).
• (e) The likelihood that the aim pursued in the public interest could have been reached by other routes less damaging to the other party, with a reasonable chance of prompt success.
• (f) A possible limitation of the harm caused, given the chance that the material would have reached the public anyway.

Both judgments are civil cases about an unlawful publication, decided under artikel 6:162 BW. Whether the criminal chamber of the Hoge Raad applies the same catalogue inside the artikel 261 lid 3 Sr exception is a separate question.

Choosing between the two routes

The routes are not mutually exclusive, and they answer different questions. A criminal case asks whether the maker of the statement should be punished, and that decision does not belong to the victim. A civil case asks whether the statement was unlawful towards this claimant and what should be done about it, and that decision stays with the claimant throughout.

Where the goal is removal of a publication or a published correction, the civil route is the one that produces it, and the kort geding is its fast version. Where the goal is a criminal conviction, the klacht is the only way in, subject to the three-month period and to the prosecutor's discretion. Recordings and messages gathered as proof raise their own questions, which are covered on the page about recordings as evidence.