A kingdom rich in criminal defamation laws
As part of Caribbean campaign, IPI urges Kingdom of the Netherlands to end protections for public officials and institutions in criminal defamation legislation
By: Scott Griffen, Press Freedom Adviser for Latin America and the Caribbean
LONDON, Oct 10, 2013 — Aruba, Curaçao, and Sint Maarten should work to bring their defamation legislation in line with international standards, the International Press Institute (IPI) said today on the third anniversary of the dissolution of the former Netherlands Antilles. All three Caribbean jurisdictions now hold equal status with the Netherlands as constituent countries within the Kingdom of the Netherlands.
As part of its Campaign to Repeal Criminal Defamation in the Caribbean, IPI researched the relevant defamation law within the Kingdom of the Netherlands. The results give cause for significant concern: not only are defamation and libel criminal offences in all four countries, but the punishments they carry are also increased — prison time by one-third, fines by a category — when the alleged defamation is directed at a public official in virtue of his or her profession, or at "public authorities, public bodies, or public institutions." Those convicted of some types of criminal defamation may also be stripped of key civil rights, as well as the right to practise "certain professions".
The added protection for public officials strongly conflicts with international standards on press freedom. In a 2000 joint statement, the special rapporteurs on freedom of expression of the Organization of American States (OAS), the Organization for Security and Co-operation in Europe (OSCE), and the United Nations declared:
"Defamation laws should reflect the importance of open debate about matters of public concern and the principle that public figures are required to accept a greater degree of criticism than private citizens; in particular, laws which provide special protection for public figures, such as desacato laws, should be repealed."
"On a day marking the achievement of full autonomy for the former Netherlands Antilles, we urge Aruba, Curaçao, and Sint Maarten to assert their independent legislative power and remove references to defamation and insult from their criminal codes," IPI Press Freedom Manager Barbara Trionfi said. "In particular, the extra protection for public officials, authorities, or institutions does not reflect democratic values and should be repealed as a matter of urgency."
Trionfi added: "As IPI's research shows, the criminal codes of all four constituent countries of the Kingdom of the Netherlands could do a much better job of protecting freedom of the press. The media must be able to report on matters in the public interest — including the activities of public officials as related to their office — without fear of criminal sanctions. The existence of criminal defamation laws increases the likelihood that journalists will stay silent."
IPI is also urging the Netherlands to follow the example set by England, a fellow former colonial power, which repealed its criminal libel laws in 2009.
The Netherlands Antilles — Curaçao, Sint Maarten, Bonaire, Sint Eustatius, and Saba — was officially dissolved on Oct. 10, 2010. On that date, the former two became constituent countries within the Kingdom of the Netherlands, alongside the Netherlands and Aruba, which achieved constituent status in 1986 after seceding from the Antilles. The latter three became special municipalities of the Netherlands proper and mainland Dutch law is being introduced there on a gradual basis.
Since 2010, the legislatures of Aruba, Curaçao, and Sint Maarten have all approved new criminal codes. These are largely based on former Antillean legislation, itself modelled on mainland Netherlands law. All four codes are similar enough so as to be discussed together. (A separate criminal code does apply in Bonaire, Sint Eustatius, and Saba [BES], but changes to BES law are the province of the Dutch Parliament.)
Broadly speaking, criminal defamation law in the Kingdom of the Netherlands falls into two categories: defamation and insult of high authority (lèse-majesté). Click here to access IPI's summary of the laws.
Criminal defamation in the Kingdom can take one of three principal forms: defamation (smaad), libel (smaadschrift), or slander (laster). Defamation is defined in all four codes as an attack on someone's good name or honour through the accusation of a particular act or fact with the aim to make that act public. In all four jurisdictions, the convicted party faces up to six months in prison. Libel (in Dutch literally, "written defamation") is punished with up to one year in prison. The laws of Aruba, Curaçao, and Sint Maarten have been updated to explicitly include electronic texts within this category.
Truth is not mentioned in any of the codes as a defence for either defamation or libel, nor is it stated that the burden for proving malicious intent should fall on the plaintiff, as international standards suggest.
The third principal offence, slander, refers to defamation or libel that is known to be false. The commensurate term in the English-speaking Caribbean would be defamatory or malicious libel known to be false. Those convicted of slander face up to three years in prison in the Caribbean countries and two in the Netherlands, plus the loss of certain civil rights, such as the holding of public office, the right to vote — and the right to practise "certain professions."
On a positive note, three of the four laws (not Aruba) explicitly state that criminal actions for defamation and libel cannot be brought for material in the "public interest." However, IPI finds that this exemption is undermined by the one-third increase in punishment for defaming public officials or institutions, as the latter could dissuade journalists from covering topics in the public interest in the first place.
The increase applies to defamation, libel, and slander, as well as a fourth category, "simple insult" (eenvoudige belediging), defined only as "insult not consisting of defamation or libel." Here, IPI notes with concern that all four laws state that prosecutions for criminal defamation can only be initiated upon complaint — except for in cases involving public officials and institutions. Here, the State may initiate prosecution on its own.
There is legal precedent in the Kingdom on the question of whether public officials can be accorded greater protection against defamation. In 2009, the Supreme Court of the Netherlands overturned a lower court's decision acquitting a then-19-year-old student of verbally insulting police officers under Article 266 of the Dutch Criminal Code (so-called "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.
While certainly not advocating malicious insult, IPI does believe that criminal defamation laws in general, but especially those that appear to prioritise the reputations of authority figures or institutions, can result in self-censorship among journalists or other private citizens. This self-censorship, in turn, may preclude the type of vigorous criticism necessary for a transparent democracy.
For this reason, IPI urges quick repeal of criminal code sections 267 (Netherlands), 2.15.5 (Aruba), 2:227 (Curaçao), 2:227 (Sint Maarten), and 279 (BES).
A 2010 joint statement by the special rapporteurs for freedom of expression of the UN, OSCE, OAS, and the African Commission on Human and People’s Rights (ACHPR) supports IPI’s position. The statement calls criminal defamation one of the "ten key challenges" to freedom of expression over the subsequent decade and expresses particular concern over:
"(c) The protection of the reputation of public bodies, of State symbols or flags, or the State itself.
(d) A failure to require public officials and figures to tolerate a greater degree of criticism than ordinary citizens."
The statement also expresses concern over laws that: penalise true statements; fail to require the plaintiff to prove elements such as malice; and impose "unduly harsh sanctions" such as imprisonment, excessive fines, and the loss of civil rights. As IPI's research shows, all of these characteristics appear to be found in the laws of the Kingdom of the Netherlands.
Two further crimes appear in the defamation sections of the Dutch Kingdom's laws. The first, lasterlijke aanklacht or "slanderous complaint," punishes with up to three years' imprison the filing of a false criminal complaint against a government official that could damage that official's reputation. IPI believes that this crime, again, could indicate a troubling tendency of all four laws to prioritise the reputation of authority figures, especially as private citizens do not appear to enjoy similar protections.
The second, lasterlijke verdachtmaking or "slanderous insinuation," sets forth the same punishment for anyone who falsely "intentionally brings another person under suspicion" of having committed a criminal act. (This crime does not appear in mainland Dutch law.)
In addition to criminal defamation, separate sections of all four countries' laws deal specifically with insult to high authority. Lèse-majesté, here defined as intentional insult of the sovereign, can be punished with up to five years in prison in Aruba and the Netherlands and six in Curaçao and Sint Maarten. Intentional insult of the royal family or of the Governor-General can lead to four years' imprisonment in all jurisdictions. Insulting the head of state of a 'friendly nation' and, in some codes, "internationally protected persons", is also punishable by imprisonment. Prosecutions for lèse-majesté have taken place in recent years in the Netherlands.
All codes also specify separate punishments, including prison time, for those who disseminate or bring to the public's attention material known to contain intentional insult of the personages listed above. In the Netherlands, a person who does so while exercising his or her profession can, under certain circumstances, be then forbidden from practising that profession. More circumspectly, the laws of Aruba, Curaçao, and Sint Maarten refer here to the loss of certain civil rights, including the right to practise "certain professions." Although no such case is known to IPI, the potential impact on journalists from such stipulations is clear.
A form of criminal defamation law, lèse-majesté laws, insofar as they foresee lengthy jail terms for the publication of ideas or information, represent a serious breach of the right to press freedom. Criticising lèse-majesté laws in other countries, Frank La Rue, the UN’s Special Rapporteur on the right to freedom of opinion and expression said: “The threat of a long prison sentence and vagueness of what kinds of expression constitute defamation, insult, or threat to the monarchy, encourage self-censorship and stifle important debates on matters of public interest.”
Again, IPI is concerned about the chilling effect that defamation laws clearly favouring those in positions of power could have upon free expression and press freedom. While it believes that criminal defamation should be fully repealed, IPI today urges the Kingdom of the Netherlands to swiftly apply the principle of equal protection to its criminal defamation law.
IPI Executive Director Alison Bethel McKenzie visited Curaçao in May to deliver the keynote address at the Caribbean observance of World Press Freedom Day. In her speech, she called on all Caribbean jurisdictions to repeal criminal defamation.
In April, an IPI mission visited Suriname, a former Dutch colony whose criminal defamation laws are similar to those of its Dutch-speaking neighbours, although in some respects they go even further. For example, in addition to the above-mentioned general categories, Suriname also punishes insult of the national flag with up to six months in prison, and public expression of enmity, hatred, or contempt (vijandschap, haat of minachting) toward the Surinamese government with up to seven years.
IPI's Campaign to Repeal Criminal Defamation in the Caribbean began in April 2012. Grenada has since repealed its criminal libel laws, while bills that would fully or partially decriminalise defamation are now pending in Jamaica, Trinidad and Tobago, and the Dominican Republic. The government of Antigua and Barbuda has committed to repealing criminal defamation before the 2014 general elections.
Earlier this year, IPI released a report examining the legal status of criminal defamation in the Caribbean. It found that all independent countries considered geographically or culturally part of the Caribbean (all island nations plus Belize, Guyana, and Suriname) had some form of criminal defamation law, including seditious libel, on the books. Should the Jamaican Parliament pass the bill currently being considered, Jamaica would be the first Caribbean country to have no such law.
 In Curaçao, the new code took effect on Nov. 15, 2011. In Aruba and Sint Maarten, the new codes have been approved, but the enactment of "introductory legislation" (Invoeringswet) is technically needed to give the codes the force of law, according to the Erasmus Center for Penal Studies in the Netherlands, which helped adapt the laws. In the interim, Aruba remains under its previous code and Sint Maarten under the Netherlands Antilles code; however, the provisions of those laws regarding defamation are largely indistinguishable from the new codes. For this reason, IPI has chosen to consider the latter for the purposes of this report.