Negative comments during a business dispute
A partnership that breaks down rarely leads solely to a dispute over invoices. Often, a dispute also ensues over the story behind it: who failed to deliver, who is not paying, and who is entitled to speak to third parties about it? Entrepreneurs who feel they have been wronged sometimes approach their former partner’s shareholders, investors or customers directly. This is understandable, but legally risky. A recent ruling by the Amsterdam Court of Appeal in summary proceedings (dated 15 September 2026, ECLI:NL:GHAMS:2026:2550) clearly illustrates where the line lies between justified criticism and unlawful accusations.
1. The crux of the matter: two fundamental rights in conflict
In the case of an injunction against expression, everything revolves around balancing two interests which are – in principle – of equal weight. On the one hand, there is freedom of expression: that is, the right to express criticism and warnings publicly, protected by Article 7 of the Constitution (and Article 10 of the ECHR). On the other hand, there is the interest of the criticised company in ensuring that its honour, good name and reputation are not frivolously exposed to insinuations, protected by Article 8 of the ECHR (and, in a countervailing sense: the tort of defamation). Neither right automatically prevails; the court weighs up all the circumstances of the case.
What is not decisive in this regard is whether the party concerned perceives the statement as offensive or harmful. The fact that a statement is hard to take does not in itself make it unlawful. What is decisive, above all, is whether the statement is supported by the factual evidence available at that time. Furthermore, the wording chosen must not be unnecessarily offensive, and it is taken into account that certain types of allegations are, by their very nature, particularly harmful.
2. What happened in this case
The factual background will be familiar to many business owners. In June 2023, a software supplier and a client entered into a 36-month SaaS Agreement, under which an NFT trading platform was to be developed and supported for €2,850 per month (para. 3.1). NFT stands for ‘non-fungible token’, i.e. a digital asset that represents real-world objects, such as art, in-game items and videos, which are sold online, often using cryptocurrency. The project did not go as hoped, the monthly payments ceased, and the relationship deteriorated.
What makes the case remarkable is the tone of the escalation. In July 2024, the client set out three scenarios in an email: (1) carry on, (2) part ways amicably, or (3) literally as described — “Option 3: Clusterfuck”, accompanied by the announcement of a notice of default, a demand for repayment, a claim for damages and the intention to inform “relevant persons and parties” about alleged unethical business practices (para. 3.3). A day later came the announcement that no non-disclosure agreement (NDA) had been signed and that the client was therefore free to share information about the alleged unlawful practices with third parties.
This was followed by the escalation that led to the legal proceedings. On 1 April 2025, the client sent a detailed letter to all shareholders of the supplier, containing a list of “Proven shortcomings” (late delivery, inadequate support, failure to meet quality standards, unfulfilled commitments regarding a position as Chief Token Officer), a passage on the collapse of the price of $AX tokens following sales by the supplier, and a section on “Withholding of information, secondary activities and inappropriate behaviour”. This final section stated that several (former) employees had reported inappropriate behaviour by a director, including bullying and discriminatory or racist remarks in the workplace.
This was followed by two further notices to shareholders and investors (17 April and 1 May 2025), a report to the Whistleblowers’ Office and a police report alleging, amongst other things, extortion. No proceedings on the merits or preliminary witness hearings had been initiated at that time. The supplier sought an injunction in summary proceedings to prohibit negative statements, subject to a penalty payment. The judge in summary proceedings granted this in part; the Court of Appeal upheld that judgement almost in its entirety.
3. The allegation that was prohibited
According to the Court of Appeal, there was, for the time being, no proper factual basis for the passage concerning inappropriate behaviour. Some of the examples cited were irrelevant and originated from a private app group amongst managers themselves — meaning they were not expressed in the workplace and were not directed at employees. The existence of police reports filed by (former) employees was not demonstrated, whilst this was the responsibility of the party relying on an adequate factual basis. Nor could it be specified at the hearing exactly which specific incidents the allegation was based on; a reference to 142 pages of exhibits containing isolated passages stripped of their context was not sufficient.
The invocation of the public interest did not help. The requirement for a sound factual basis also applies to statements that expose malpractice. Furthermore, a report had already been lodged with the Whistleblowers’ Ombudsman. Although the Ombudsman’s findings do not serve to establish civil liability (Section 8(3) of the Whistleblowers’ Protection Act), the report was made public (Section 17(7) of the Whistleblowers’ Protection Act). This meant that the required duty to warn had already been fulfilled; the Court of Appeal could not see what other interest, worthy of respect, might exist in approaching shareholders and investors in this manner.
The nature of the damage also carried significant weight. Allegations of inappropriate behaviour are taken very seriously in this environment: business relationships are damaged, investors are deterred and the financial support of shareholders is jeopardised — which is particularly damaging for a start-up. The fact that the emails did not appear in the media and were marked as ‘confidential’ did not alter the fact that they constituted communications to third parties, and thus to parties other than the directors themselves. The balancing of interests therefore favoured the company: a ban on further communications of this nature, reinforced by a penalty payment of €5,000 per breach, up to a maximum of €100,000.
4. The complaints that were permitted to be shared
For all other allegations, the outcome was different. The Court of Appeal set out a principle relevant to any business owner involved in a dispute: parties must be free to express their views on the dispute not only in court but also out of court, including regarding the role and performance of the other party. It is not unusual for customers to be dissatisfied with a SaaS project and to express that dissatisfaction. Nor is it plausible that shareholders or investors in a start-up would attach excessive consequences to this. At its core, this concerns complaints arising from a customer and business relationship, in which there is hardly any question of defamatory statements.
The Court of Appeal reached a measured judgement on each point. As regards the list of shortcomings, there was a sufficient factual basis in the correspondence, even though those points had not yet been established and the word ‘proven’ was therefore incorrect. The same applied to the passage concerning the withholding of information and ancillary activities, where, amongst other things, detailed draft agreements on separate entities (“newcos”) served as supporting evidence; the fact that the other party interprets those facts differently does not alter this. The token issue also passed scrutiny: the fact that a sharp fall in the price followed sales was not disputed, and whether the supplier is responsible for this cannot be assessed without further factual investigation.
It is also important to note how the Court of Appeal dealt with the wording of the injunction sought. The initially sought general injunction against negative statements, and the alternative injunction against statements concerning the amendment or disregard of verbal agreements, were “so broad and vague” that they could not be granted for that reason alone. An injunction against expression must therefore be clearly defined; anyone who makes claims that are too broad will get nothing.
Finally, the court assessed whether there were grounds for an exception to freedom of expression. This would apply if it were plausible that more offensive or harmful statements would follow in the future, or that the statements had been made solely to coerce payments to which there was no entitlement. Neither of these was sufficiently substantiated. Whilst the court did not consider it implausible that the ‘clusterfuck’ strategy was partly intended to secure payment, it could not be ruled out that there was at least some entitlement to payment — a matter for the proceedings on the merits.
Note the correct party: not every company can be held liable
A practical point of great significance for holding company structures. The claims were also directed against a holding company belonging to the entrepreneur in question. The Court of Appeal dismissed these: insufficient evidence had been presented regarding the holding company’s role to attribute the statements to it. An unspecified contract for services and an invoice were insufficient; the statements themselves did not provide grounds for that conclusion; and the fear that the person concerned might make unlawful statements in the future in his capacity as a director of the holding company was unsubstantiated. A measure as severe as interfering with the freedom of expression of a separate legal entity requires more. The prohibition was limited to the company in question and the person concerned, with the proviso that his statements on this subject would be attributable to either of them.
What this means for your business
For business owners who find themselves in conflict with a supplier, customer or business partner, the lessons are clear.
Anyone voicing criticism is safest to do so in a factual and document-based manner. Describe what was agreed, what was delivered and where things went wrong — and ensure that every allegation can be traced back to correspondence, contracts or other documents. Do not say ‘proven’ where ‘disputed’ or ‘in our view’ would be more appropriate. In this instance, an awkward choice of words did not cost the case, but in a less favourable case, the outcome might be different.
Be exceptionally cautious with allegations that target the person rather than their performance. Allegations of bullying, discrimination, racism or other inappropriate behaviour are, by their very nature, highly damaging and are therefore subject to rigorous scrutiny. Making such allegations to shareholders or investors without concrete, specific evidence is asking for an injunction with a penalty payment.
Furthermore, choose the correct channel. A whistleblower report, a criminal complaint, a preliminary witness hearing or legal proceedings on the merits are the appropriate routes for investigating suspected misconduct. If that route has already been taken, it actually weakens the argument that you must also inform the shareholders directly.
Furthermore, do not allow the conflict to descend into threatening language. Wording that alludes to escalation scenarios, media attention or ‘ruining the company’ does not yield any negotiating advantage, but does provide evidence that will later work against you — and fuels the accusation that you are not concerned with establishing the truth but with exerting pressure.
For the company under attack, the opposite lesson applies. Respond promptly and in writing, and refute the allegations point by point; the urgent need persisted in this case precisely because the threat of a repeat occurred, even after months without any new statements. Next, formulate your claim precisely. A general ban on ‘all negative statements’ will fail on grounds of vagueness; a ban tailored to the specific, factually unfounded category of allegations does stand a chance. And direct your claim against the parties who actually took action, providing substantiation for each company.
Finally: summary proceedings are suitable for this type of dispute. The fact that the facts are not fully established and that further evidence cannot be provided is inherent to summary proceedings and does not render the case unsuitable. That would only be the case if the court were unable to adequately assess the situation and the consequences of its decision. Anyone who needs to quickly put out a reputational fire therefore does not need to wait for proceedings on the merits — but must accept that the substantive assessment will take place there.
Q&A: frequently asked questions about negative statements in a business dispute
May I share my dissatisfaction with a supplier with its shareholders or investors?
· Often, yes, provided your criticism relates to the business relationship and performance, is substantiated by facts, and is not phrased in an unnecessarily offensive manner. Parties are also permitted to express their views on a dispute outside the courtroom. However, as soon as serious, personally targeted allegations are made without concrete evidence, it becomes unlawful.
Is an email labelled ‘confidential’ safe?
· No. As soon as the message is sent to anyone other than the directors of the other party themselves — for example, shareholders or investors — it constitutes disclosure to third parties. The label ‘strictly confidential’ does not remove the unlawfulness.
What is the key test applied by the court?
· Whether the statement is sufficiently supported by the facts available at the time. In addition, the court considers whether the wording is unnecessarily offensive and how damaging the nature of the allegation is. The fact that someone feels offended is not decisive.
Can I obtain an injunction against “all negative statements” about my company?
· Most likely not. Such an injunction is too broad and too vague and will therefore be rejected. Formulate your claim specifically in relation to the particular category of statements that lack a factual basis.
Does invoking the public interest or whistleblowing help?
· Not automatically. Even for statements that expose wrongdoing, the requirement for a sound factual basis still applies. If you have already made a report to the Whistleblowers’ Centre or filed a police report, it becomes particularly difficult to explain why you also need to approach shareholders and investors directly.
Can my holding company be subject to a gag order?
· Only if it is specifically substantiated that the statements are (also) attributable to that company. Restricting the freedom of expression of a separate legal entity is a drastic measure; vague fears regarding a director’s future conduct are insufficient.
What penalty do I risk if I breach the order?
· That varies from case to case. In these proceedings, the penalty was €5,000 per breach, with a maximum of €100,000 — sums which can quickly become financially painful for a business even after just a few posts.
Do I have to wait for proceedings on the merits?
· No. An injunction prohibiting disclosure can be sought in summary proceedings, even if the facts have not yet been fully established. The question of who has breached the contract and who is liable for damages does, however, belong in the proceedings on the merits.
I haven’t signed a confidentiality declaration or agreement. Does that mean I can say anything?
· No. The absence of such a document does not give you carte blanche. Even without a contractual duty of confidentiality, statements may be unlawful on the grounds of the protection of honour, good name and reputation.
What should I do if my company receives such an accusatory email?
· Respond promptly, in writing and point by point, document the case, and have it assessed to determine which specific statements lack a factual basis. For that category, you can seek a specific injunction with a penalty payment; if your claim is formulated too broadly, you will end up paying court fees without achieving any result.
Questions?
Do you have any questions regarding this article? Our solicitors are on hand to advise you! Please contact one of our solicitors via email, by telephone or fill in the contact form for a no-obligation initial consultation. We would be happy to discuss this with you.
