Netherlands

 CountryType of Law 
 
 

Criminal Defamation

The Dutch Criminal Code provides the following relevant provisions:

Slander (Art. 261(1); smaad) is defined as intentionally harming a person’s honour or reputation through the allegation of a particular fact with the aim of making that fact public. The penalty is a fine of the third degree or imprisonment for up to six months.

Libel (Art. 261(2); smaadschrift) is an act of defamation that occurs by means of publicly accessible writing or images. It is punishable with a fine of the third degree of imprisonment for up to one year.

There is no liablity for criminal slander or libel if the act was necessary to defend the offender’s interests or the interests of others or the offender believed in good faith that the allegation was true and was necessary in the public interest (Art. 261(3)).

Aggravated defamation (Art. 262; laster) is an act of slander or libel in which the offender knows that the statement or assertion in question is false. The penalty is a fine of the fourth degree or imprisonment for up to two years. In addition, a conviction for aggravated defamation may result in the loss of civil rights (1) and (2) under the list of rights enumerated in Art. 28 of the Criminal Code .

Simple insult (Art. 266; eenvoudige belediging) includes any intentional insult that is not classifiable as defamation or libel. It is punished with a fine of the second degree or imprisonment for up to three months.

Distribution of insulting or slanderous material (Art. 271):
“1. Any person who distributes, publicly displays or posts, or has in store to be distributed, publicly displayed or posted, written matter or an image whose contents are insulting or, with regard to a deceased person, slanderous or libellous, if he knows or has serious reason to suspect that the written matter or the image contains such, shall be liable to a term of imprisonment not exceeding three months or a fine of the second category.
2. Any person who, with the same knowledge or reason to suspect such, publicly utters the contents of such written matter shall be liable to the same punishment.
3. If the offender commits any of the serious offences defined in this section in the practice of his profession and if at the time of commission of the serious offence two years have not yet expired since a previous conviction of the offender for any of these serious offences became final, he may be disqualified from the practice of that profession.
4. The serious offences shall be prosecuted only on complaint of the persons designated in Section 269 and Section 270(2), except for the cases provided for in the opening lines of section 267 and in (1°) and (2°).”

It should be noted that Art. 268 of the Criminal Code provides criminal liability for defamatory accusation, defined as “intentionally submit[ting] a “false written complaint or report against a particular person to the authorities, thereby injuring the honour or reputation of that person”. The penalty is imprisonment for up to two years or a fine of the fourth degree.

Finally, it is worth noting Criminal Code Art. 137c, which provides:
“1. Any person who in public, either verbally or in writing or through images, intentionally makes an insulting statement about a group of persons because of their race, religion or beliefs, their hetero- or homosexual orientation or their physical, mental or intellectual disability, shall be liable to a term of imprisonment not exceeding one year or a fine of the third category.
2. If the offence is committed by a person who makes a profession or habit of it or by two or more persons in concert, a term of imprisonment not exceeding two years or a fine of the fourth category shall be imposed.”

The objective aspect of this crime should be differentiated from that set forth in Art. 137d, which punishes the incitement of hatred or discrimination against persons based on the same group identities listed in Art. 137c.

Criminal Defamation of Public Officials

Art. 267 of the Dutch Criminal Code states that the maximum prison sentences for the offences under Arts. 261 – 266 (defamation, libel, intentional libel, insult) may be increased by one-third if the offence was committed against:
1. “the public authorities, a public body or a public institution”
2. a public official in relation to the lawful exercise of his office; or
3. the head or a member of the government of a friendly state.

Criminal Defamation of the Head of State

Offence toward the monarch and the royal family (lèse-majesté) remains a criminal offence in the Netherlands under the Dutch Criminal Code.

Art. 111 punishes intentional insult of the King with up a fine of the fourth degree or imprisonment for up to five years.

Art. 112 punishes intentional insult of the King’s spouse, the heir apparent, the heir apparent’s spouse, or of the Regent with a fine of the fourth degree or imprisonment for up to four years.

According to Art. 114(2), conviction under Art. 111 or Art. 112 may also lead to the loss of civil rights (1), (2) and (3) of the rights enumerated in Art. 28 of the Criminal Code .

Distribution of material insulting to the King and members of the royal family (Art. 113):
“1. Any person who distributes, publicly displays or posts, or has in store to be distributed, publicly displayed or posted, written matter or an image defaming the King, the King’s consort, the King’s heir apparent or his spouse, or the Regent, shall be liable to a term of imprisonment not exceeding one year or a fine of the third category, if he knows or has serious reason to suspect such defamatory content of the written matter or image.
2. Any person who, with the same knowledge or reason to suspect such, publicly utters the content of such written matter shall be liable to the same punishment.
3. If the offender commits any of the serious offences defined in this section in the practice of his profession and if at the time of commission of the serious offence two years have not yet expired since a previous conviction of the offender for any of these serious offences became final, he may be disqualified from the practice of that profession.”

Criminal Defamation of the State and its Symbols

Art. 267 of the Criminal Code provides that, in the case of slander, libel, aggravated defamation or simple insult committed against “the public authorities, a public body or a public institution”, the usual punishments for these offences may be increased by one-third.

Criminal Defamation of Foreign Heads of State

Criminal Code Art. 118(1) provides criminal liability for international insult of “the head or a member of government of a friendly nation, present in the Netherlands in his official capacity”. The penalty is imprisonment for up to two years or a fine of the fourth degree.

The same punishment applies to intentional insult “of a person in his capacity as a representative of a friendly nation accredited to the Dutch government” (Art. 118(2)).

A conviction under Art. 118 may also lead to the loss of civil rights (1) and (2) in the list of rights enumerated in Criminal Code Art. 28 .

Distribution of material insulting to foreign officials (Art. 119):
“1. Any person who distributes, publicly displays or posts written matter or an image defaming a head or a member of the government of a friendly nation, present in the Netherlands in his official capacity, or who publicly utters the content of such written matter, shall be liable to a term of imprisonment not exceeding six months or a fine of the third category, if he knows or has serious reason to suspect such defamatory content of the written matter or image.
2. Any person who distributes, publicly displays or posts, or has in store to be distributed, publicly displayed or posted, written matter or an image defaming a person in his capacity as a representative of a friendly nation accredited to the Dutch government or who publicly utters the content of such written matter, shall be liable to the same punishment, if he knows or has serious reason to suspect such defamatory content of the written matter or image.
3. If the offender commits any of the serious offences defined in this section in the practice of his profession and if at the time of commission of the serious offence two years have not yet expired since a previous conviction of the offender for any of these serious offences became final, he may be disqualified from practising that profession.”

In addition, Art. 267 of the Dutch Criminal Code states that the maximum prison sentences for the offences under Arts. 261 – 266 (defamation, libel, intentional libel, insult) may be increased by one-third if the offence was committed against:
1. “the public authorities, a public body or a public institution”
2. a public official in relation to the lawful exercise of his office; or
3. the head or a member of the government of a friendly state.

Criminal Defamation of Foreign States and Symbols

No provisions.

Criminal Defamation of the Deceased

Criminal Code Art. 270 provides that “[a]ny person who, with regard to a deceased person, commits an act that would constitute libel or slander if that person were still alive, shall be liable to a term of imprisonment not exceeding three months or a fine of the second category”.

Prosecution under Art. 270 must be based on a complaint filed by certain relatives described by the law (Art. 270(1)).

Criminal Blasphemy

No provisions.

Blasphemy was previously a criminal offence under Arts. 147, 147a, and 429bis of the Dutch Criminal Code. All three articles were officially removed on 1 March 2014.

Criminal Statistics

2. Statistics

The following official data were provided upon request to the International Press Institute by Statistics Netherlands .

The data below refer to the year 2013 (most recent available at time of request).
• For Art. 261, par. 1 (defamation), there were 30 convictions, resulting in 5 prison sentences, 10 criminal fines, 15 sentences of community service, 5 other, and 5 instances in which no punishment was ordered.
• For Art. 261, par. 2 (libel), there were 25 convictions, resulting in 5 prison sentences, 10 criminal fines, 15 sentences of community service, and 5 other.
• For Art. 262 (intentional libel), there were 15 convictions, resulting in 5 prison sentences, 5 criminal fines, 5 sentences of community service, and 5 other.
• For Art. 266 (simple insult), there were 165 convictions, resulting in 25 prison sentences, 85 criminal fines, 50 sentences of community service, 35 other, and 10 instances in which no punishment was ordered.
• For Art. 267 (defamation of public officials, public bodies, and foreign officials), there were 1,445 convictions, resulting in 255 prison sentences, 865 criminal fines, 430 sentences of community service, 170 other, and 45 instances in which no punishment was ordered.
• There were 0-5 convictions for Arts. 111 – 113 (lèse-majesté), and 118 (insult of foreign officials), and 270 (defamation of the deceased).

The data below refer to the year 2012:
• For Art. 261, par. 1 (defamation), there were 10 convictions, resulting in 0 prison sentences, 5 criminal fines, 5 sentences of community service, and 10 other.
• For Art. 261, par. 2 (libel), there were 20 convictions, resulting in 5 prison sentences, 10 criminal fines, 10 sentences of community service, and 5 other.
• For Art. 262 (intentional libel), there were 20 convictions, resulting in 5 prison sentences, 10 criminal fines, 10 sentences of community service, and 10 other.
• For Art. 266 (simple insult), there were 200 convictions, resulting in 20 prison sentences, 130 criminal fines, 50 sentences of community service, 50 other, and 20 instances in which no punishment was ordered.
• For Art. 267 (defamation of public officials, public bodies, and foreign officials), there were 1,850 convictions, resulting in 270 prison sentences, 1,125 criminal fines, 555 sentences of community service, 195 other, and 60 instances in which no punishment was ordered.
• There were 0-5 convictions for Arts. 111 – 113 (lèse-majesté), and 118 (insult of foreign officials), and 270 (defamation of the deceased).

Criminal Law and Media

1. General notes

Criminal prosecutions for defamation involving the press are rare in the Netherlands, and in general Dutch courts follow the principles of ECtHR case law. A 2012 Council of Europe report quoted Dutch authorities as stating that “a person will only be prosecuted and sentenced on the basis of defamation offences, if such a prosecution or sentence is compatible with the case-law of the European Court of Human Rights; this applies in particular with regard to the right to freedom of expression.”

3. Selected cases

Lèse-majesté
In 2007, a 17-year-old journalist working for the magazine Spunk was arrested for wearing a T-shirt with the words “Queen Beatrix is a whore”. The journalist was ultimately not charged, while Spunk’s editor explained that the incident was meant to draw attention to free speech after an Amsterdam man was fined €400 for insulting Queen Beatrix a week earlier, using the same slogan.

In May 2015, Dutch prosecutors said that lèse-majesté charges would be pursued against an activist who was heard on television using swear words to refer to the Dutch King Willem-Alexander. The activist, Abulkasim al-Jaberi, was taking part in a protest against the popular Dutch holiday figure Black Pete.

Recent Legal Changes

On 1 March 2014, the Dutch Criminal Code was amended to repeal criminal blasphemy (formerly Arts. 147, 147a, and 429bis). It had reportedly been last invoked in 1968.

Notes and Acknowledgements

Information for the Netherlands was originally collected by IPI as part of the “Out of Balance” report, published in January 2015 with support from the European Commission and incorporating research contributed by Center for Media, Data and Society at Central European University in Budapest and by the SHARE Foundation in Belgrade. This entry was later expanded and updated by IPI as part of a study commissioned by the Office of the Representative on Freedom of the Media of the Organization for Security and Co-operation in Europe (OSCE). Last update: March 2017.

The information contained in this database is for informational and advocacy purposes only. If you are a journalist facing a defamation claim, you should seek legal advice from a qualified attorney. However, if you are unable to find such an attorney, IPI may be able to assist you in doing so. Please contact us at info(at)ipi.media.

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