Netherlands

 CountryType of Law 
 
 

Criminal Defamation

Defamation remains a criminal offence in the Netherlands.

The Dutch Criminal Code includes four general types of criminal defamation: defamation (Art. 261, par. 1), libel (Art. 261, par. 2), intentional libel (Art. 262), and simple insult (Art. 266).

Defamation (smaad) is defined as an “assault” on a person’s “good name or honour through the imputation of a particular fact” with the aim to make the fact public. It is punishable with a of the third degree or imprisonment for up to six months.

Libel (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.

Intentional libel (laster) is an act of defamation or libel in which the offender knows that the statement or assertion in question is false. It is punishable with a fine of the fourth degree of imprisonment for up to two years. In addition, a conviction for slander may result in the loss of certain civil rights enumerated in Art. 28 of the Criminal Code, in this case the right to hold (certain) public offices and the right to serve in the armed forces.

Simple insult (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.

In addition, Art. 271 anyone who possesses, distributes, or brings to the public’s attention a writing or image known or suspected to contain defamatory content is guilty of a criminal offence and faces a fine of second degree or imprisonment for up to three months. Under certain circumstances, repeat offenders may be banned from practicing their profession.

 

Criminal Defamation of Public Officials

Provisions on the books.

All four forms of criminal defamation in the Netherlands are punished more harshly if the victim is a public official.

Art. 267 of the Dutch Criminal Code states that the maximum prison sentences for criminal defamation may be increased by one-third if the offence was committed against:

  1. a public authority, public body, or public facility;
  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 [foreign] state.

It should also be noted that Art. 268 punishes the bringing of false charges or the making of a false written declaration against a government official with up to two years in prison or a  of the fourth degree. Private citizens do not enjoy this protection.

 

Criminal Defamation of the Head of State

Provisions on the books.

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  of the fourth degree or imprisonment for up to five years.

Art. 112 punishes “intentional insult of the King’s spouse, the expected heir to the throne, of this latter’s spouse, or of the Regent” with a fine of the fourth degree or imprisoment for up to four years.

Conviction on either of these offences may also lead to the loss of certain civil rights enumerated under Art. 28 of the Criminal Code, in this case holding certain public offices, serving in the armed forces, and voting for and serving in “representative bodies.”

Additionally, Art. 113 criminalises the act of possessing, distributing, or bringing to the public’s attention a writing or image that the person knows or “had good reason to suspect” contains insults toward the King or the parties in Art. 112. The punishment is a fine of the third degree of imprisonment for up to three months.  In certain circumstances and given a prior conviction on the same charge, the offender may be prohibited from practicing his profession.

 

Criminal Defamation of the State and its Symbols

Provisions on the books.

Defamation of “public bodies or facilities” is a criminal offence under Art. 267 of the Dutch Criminal Code. In the case, the usual punishments for criminal defamation are increased by one-third.

 

Criminal Defamation of Foreign States and Symbols

Provisions on the books.

Intentionally insulting the head of state or a member of government of a friendly state with respect to their official activities while in the Netherlands is a criminal offence under Art. 118 of the Dutch Criminal Code. The punishment is a  of the fourth degree of imprisonment for up to two years, in addition to the potential loss of certain civil rights.

 

Criminal Defamation of the Deceased

Provisions on the books.

According to Art. 270 of the Dutch  Criminal Code, any action committed against a deceased person “that, if said person had been alive would have counted as defamation or libel” is punished with a  of the second degree or imprisonment for up to three months.

 

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.

 

Other Relevant Criminal Offences

Group defamation

Art. 137c of the Dutch Criminal Code punishes group defamation  religion, race, sexual preference, or disability with up to one year in prison or a fine of the third degree; punishment is increased if the offence becomes habitual.

 

Criminal Procedure

Criminal prosecutions for defamation may only occur at the request of the offended party. The exception is acts of defamation directed at public officials and public bodies, which  may be prosecuted ex officio (Art. 269 of the Dutch Criminal Code).

 

Statistics on Application

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).

Explanatory notes (provided by Statistics Netherlands):

  • Figures are rounded to the nearest 5.
  • The total number of punishments differs from the total number of convictions, as one conviction may carry more than one punishment.
  • These data concern only cases tried by a judge. In the Netherlands, certain offences can be settled by the Public Prosecutor. Data on these settlements were provided to IPI and can be viewed here.

 

Civil Defamation

The Netherlands does not have a specific civil defamation law. Defamation is considered a tort under the Dutch Civil Code, defined as “a violation of someone else’s right (entitlement) and an act or omission in violation of … what according to unwritten law has to be regarded as proper social conduct, always as far as there was no justification for this behaviour” (6:162).

Damages

There are no caps on non-pecuniary damages for defamation in Hungarian law.

Non-pecuniary damages are to be assessed “in conformity with the standards of reasonableness and fairness” (Section 6.1.10).  Non-pecuniary damages average between €1,000 and €5,000. €25,000 would, for example, be an extremely high amount for the Dutch courts.

Courts may also order defendants to publish a public retraction/correction (6:167).

Statutory defences

None specified. In civil cases, Dutch courts will seek to balance the right to free expression with the rights to reputation and private life as contained in the European Convention. In considering whether or not the speech in question was  “justified” according to the definition or a tortious act, courts will take into account the specific circumstances of the case. Truth, public interest, and the fact-value distinction generally play a central role in defamation cases. However, according to Dutch lawyers consulted by the International Press Institute indicated the case law on the limits of free expression remains somewhat vague and based on subjective standards, with decisions ultimately left to the discretion of individual judges.

 

Media Cases and Case Law

Notable case law

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 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.”

Van Gasteren case

In 2008, the Dutch Supreme Court  a significant ruling in favour of a journalist who had been sued for libel by a well-known film director for implying that the director had unlawfully murdered a Jewish man during the Second World War. In 1944, the director, Louis van Gasteren, was convicted of killing a Jewish man, Walter Oettinger, whom he had been harbouring in his home for five days. He was sentenced to four years in prison. Van Gasteren claimed that the committed the murder because he feared that Oettinger would betray the resistance. In 1946, Van Gasteren’s sentence was commuted and he was released.

In 1991, a journalist working for the newspaper Het Parool, Bart Middelburg, wrote a series of articles examining the Oettinger murder and suggested that Van Gasteren’s motive was robbery. In response, Van Gasteren successfully sued Middelburg for defamation and Het Parool was ordered to pay damages in a ruling upheld by the Dutch Supreme Court in 1995.

Over the years, Van Gasteren had publicly repeated his claim about the murder on several occasions, including in a 1989 newspaper article and on a 1997 television programme. In 1997, a court refused Van Gasteren’s application for a pension paid to members of the wartime resistance, ruling that Van Gasteren’s action did not qualify as an act of resistance.

In 1999, a journalist named Pamela Hemelrijk published a blog entitled “Open Letter to the Supreme Court” , in which she pointed out that the Supreme Court knew that Oettinger owned a “small fortune” and that after his murder Van Gasteren had been seen carrying a “large amount of money”. She wrote: I am not going to speculate about Louis van Gasteren’s real motives. I know better than that. Let the readers draw their own conclusions …”

Van Gesteren sued Hemelrijk for libel. The Amsterdam Appeals Court ruled that the blog must be understood as a value judgment (waardeoordeel) on a matter of public interest. The Appeals Court wrote: “She simply stated that in a cynical and provocative way that she does not believe [Van Gaseteren] and she is free to do so, given the manner in which [Van Gasteren] himself had stepped into the public sphere”. The Supreme Court confirmed this, emphasising that the pension ruling had provided a sufficient foundation for Hemelrijk’s doubt, as according to ECtHR case law even “excessive” value judgments without sufficient factual basis could be unlawful. The Supreme Court observed that, by contrast, Middelburg’s article had amounted to an assertion of fact (that Van Gasteren had committed unlawful murder) for which insufficient proof had been presented.

The Amsterdam Appeals Court had classified Hemerlrijk’s blog as a journalistic work, in which case, according to the Appeals Court, the “point of departure” (Uitgangspunt) must be freedom of expression. Van Gesteren’s lawyers challenged that the Appeals Court had wrongly created a hierarchy between Article 10 and Article 8. The Supreme Court also held that Hemelrijk should benefit from the protections enjoyed by the press but clarified that, following the ECtHR, the two rights (free expression and privacy) were to be weighed against one another according to the circumstances of the particular case and that neither right had “priority in principle”. According to the Supreme Court, the idea of “point of departure” was that freedom of expression must be taken into account in every case involving the press.

Stoelinga case

While not related to the press, a recent  by the Dutch Supreme Court highlighted the application of several key European standards on defamation. In 2011, the Court confirmed a ruling by the Hague Court of Appeal rejecting a defamation suit brought by a local alderman, Christiaan Baljé, against a municipal councilman, Martin Stoelinga. Between 2004 and 2005, a restaurant owner in the town of Delft made – by accident, it was claimed – several video and voice recordings in which the alderman appeared to, among other things, engage in questionable land deals for the benefit of his political campaign. The restaurant owner late made the recordings public after the alderman allegedly reneged on a promise to provide the restaurant owner a subsidy for a gondola business. On the basis of the tapes, Stoelinga, in a column published on the website leefbaar – delft.nl, called the politician “corrupt”, the politician then sued both Stoelinga and the restaurant owner for damages.

In this case, the Hague Court of Appeal relied heavily on European Court of Human Rights jurisprudence, citing in particular the landmark cases Lingens v. Austria and Castells v. Spain in emphasising that “in a democratic system it must be possible for the legislative authority or the judiciary, as well as the press and the public opinion, to closely observe public authorities. This means that a public official must accept fiercer criticism than a citizen”.

The Appeals Court ruled  that the assertions Stoelinga made must be seen in context not as an allegation of fact but rather as a value judgment (waardeoordeel) that, as such, “did not need to be proven” and that was also sufficiently based on available facts. As to the question of whether Stoelinga had acted unlawfully in the manner in which he expressed that judgment, the Court found that “[a]lthough it was forseeable that this publication (and column) and its content and tone  could have serious consequences for [Baljé’s] repuation, the publication and the assertions and accusations contained therein must nevertheless be reasonably considered, in both its content and its form, as a permissible contribution to the political debate on a question of sufficient public relevance”. Finally, the Court also noted that while Stoelinga’s opinion may have been provocative, it was protected by the freedom, as established by ECtHR precedent, to express even judgments that “offend, shock or disturb”. Political debate, the Appeals Court stated, must be allowed to be intense, indeed, to be conducted at the “razor’s edge” (het scherpst van de snede).

It is noteworthy here that the Appeals Court, and by extension the Supreme Court, upheld the judgment against the restaurant owner due to the fact that while Stoelinga had acted in the public interest, the restaurant owner had divulged the information in pursuit of private ends. Legal observers noted that for journalistsit is important that the fact that [the restaurant owner] was in the wrong when making the recordings does not mean that these same images could [not] be allowed as evidence and assist in the substantiation of the accusations on the basis of these images.”

In 2009, the Dutch Supreme Court a lower court’s decision acquitting a then-19-year-old student of verbally insulting police officers under Article 266 of the Criminal Code (“simple insult”). The student had called the officers “losers” and “bastards” and other similar terms. In its ruling, the Supreme Court rejected the idea, invoked by the lower court and in line with international standards, that police officers should be expected to show more “resilience” (incasseringsvermogen) toward defamation than private persons. As the Court specifically referenced Article 267, which sets forth the one-third increase, it can be assumed that its ruling also applies to other public officials. In IPI’s view, this ruling reflects the general trend in Dutch criminal law of offering increased protection for public officials and thus highlights the need for reform.

Lèse-majesté

In 2007, a 17-year-old journalist working for the magazine Spunk was 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 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 to repeal criminal blasphemy (formerly Arts. 147, 147a, and 429bis). It had reportedly been last invoked in 1968.

 

Notes and Acknowledgements

Information on defamation laws in Europe was collected by the International Press Institute (IPI) in collaboration with the School of Public Policy’s Center for Media, Data and Society at Central European University in Budapest and their partners at the SHARE Foundation in Belgrade. (Read more about our partners here.)

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 ipi[at]freemedia.at.

Information on the Netherlands was last updated in May 2015.

 

The Dutch criminal code (Art. 23) foresees six degrees of fines. The minimum fine for any category is €3, while the maximum fines are currently, as of Jan. 2014: €405 (first degree); €4,050 (second degree); 8.100 (third degree); €20.250 (fourth degree); €81.000 (fifth degree); and €810.000 (sixth degree). No defamation-related offence indicates a fine greater than the fourth degree.
The Dutch criminal code (Art. 23) foresees six degrees of fines. The minimum fine for any category is €3, while the maximum fines are currently, as of Jan. 2014: €405 (first degree); €4,050 (second degree); 8.100 (third degree); €20.250 (fourth degree); €81.000 (fifth degree); and €810.000 (sixth degree). No defamation-related offence indicates a fine greater than the fourth degree.
The Dutch criminal code (Art. 23) foresees six degrees of fines. The minimum fine for any category is €3, while the maximum fines are currently, as of Jan. 2014: €405 (first degree); €4,050 (second degree); 8.100 (third degree); €20.250 (fourth degree); €81.000 (fifth degree); and €810.000 (sixth degree). No defamation-related offence indicates a fine greater than the fourth degree.
The Dutch criminal code (Art. 23) foresees six degrees of fines. The minimum fine for any category is €3, while the maximum fines are currently, as of Jan. 2014: €405 (first degree); €4,050 (second degree); 8.100 (third degree); €20.250 (fourth degree); €81.000 (fifth degree); and €810.000 (sixth degree). No defamation-related offence indicates a fine greater than the fourth degree.
The Dutch criminal code (Art. 23) foresees six degrees of fines. The minimum fine for any category is €3, while the maximum fines are currently, as of Jan. 2014: €405 (first degree); €4,050 (second degree); 8.100 (third degree); €20.250 (fourth degree); €81.000 (fifth degree); and €810.000 (sixth degree). No defamation-related offence indicates a fine greater than the fourth degree.
This is to be distinguished from Art. 137d, which punishes group defamation that may incite hate or discrimination.
Study on the alignment of laws and practices concerning defamation with the relevant case-law of the European Court of Human Rights on freedom of expression, particularly with regard to the principle of proportionality” [Draft], 2012, Media Division, Directorate General of Human Rights and Legal Affairs, Secretariat General, Council of Europe, CDMSI(2012)Misc11.
Hoge Raad der Nederlanden, Zaaknummer C06/161HR. See also “Dutch Blogger Can Invoke Freedom of the Press”, Media Report, Kennedy van der Laan, 7 Feb. 2008.  Further background information on this case may be found here, here, and here.
Hoge Raad der Nederlanden, Zaaknummer 105.006.863/01. See also Christien Wildeman, “Gondola Affair – Municipal Councillor May Accuse Former Alderman of Corruption”, 29 April 2010, Kennedy Van der Laan.
Hoge Raad der Nederlanden, Zaaknummer 07/12075, available at . See also “Calling policemen “losers” is an offence”, Radio Netherlands Worldwide, 22 Sept. 2009.
Young reporter arrested for insulting queen”, Dutchnews.nl, 1 Aug. 2007.
Dan Bilefsky, “Dutch Activist Faces Trial Over Profanity-Laced Tirade Against King“, New York Times, 7 May 2015.
Dutch Senate votes to repeal blasphemy law from 1932”, The Amsterdam Herald, 3 Dec. 2013.
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