The Netherlands

Flag_of_the_Netherlands_svg

National flag of The Kingdom of the Netherlands adopted February 19, 1937

By Jessica Loechel

According to Reporters Without Borders’ Press Freedom Index for 2013, The Netherlands is ranked as the second best nation in the world, in regards to freedom of speech and of the press, following only Finland. The Netherlands history has been shaped by very distinct religious views, but as these views begin to dissipate with about one third of inhabitants identifying as Roman Catholics, one fourth as Protestants and the remainder professing no religion at all, the people of this country are becoming more compromising and tolerant of differences in opinions (Europa World Yearbook 2012). This trend toward acceptance is demonstrated in their ever-changing government policies in relation to free speech and free press.

Historical Background

The Kingdom of the Netherlands is home to just over 16.5 million people and covers approximately 16,000 square miles (“Europa World Yearbook 2012”). Located in Western Europe, it is bordered by Germany to the East and Belgium to the south with its remaining borders touching the North Sea. Several islands are considered to be part of the Kingdom of the Netherlands including Bonaire, Saba, and St. Eustatius, which have the status of special municipalities. Aruba, Curacao, and St Maarten are also included in this list of islands, but are considered independent countries within the Kingdom of the Netherlands. Dutch and Frisian are the two official languages of The Netherlands, but only 400,000 of its inhabitants speak the later (Europa World Yearbook 2012). The Netherlands is most popular for its free-spirited views and beautiful landscape. Due to its lack of natural resources and close proximity to some of the most important European powers, The Netherlands was led early on to an emphasis on international trade. This constant interaction with foreign nations spurred the country’s interest in the development of the rule of law in the world. “The interest of the State demands that there be quiet and peace everywhere and that commerce be conducted in an unrestricted manner,” stated Johan de Witt, leading Dutch politician during the mid 17th century (Forsythe 50). This philosophy has stuck with the Dutch people throughout history and has caused the country to join and support various international organizations including the European Union of which it is a founding member. Approximately 11 million tourists visit The Netherlands every year to take advantage of the freedoms it provides. As one of only 44 countries worldwide to still have a royal family, its government is classified as a constitutional and hereditary monarchy. The current head of state is Queen Beatrix, who took the throne in 1980 when her mother resigned. Following the queen as the head of government is Prime Minister Mark Rutte. He serves as the chair for Council of Ministers, all appointed by the queen, who under constitutional rule makes the decisions of the government. The Council of Ministers must answer to the States General, which is made up of elected officials. The Netherlands has two official capitals: Amsterdam and The Hague. Amsterdam is the economic capital and the nation’s largest city, while The Hague is its own separate city located elsewhere in The Netherlands and is the location of the federal government and all of its entities.

Freedom of Speech

The Netherlands ruling doctrine is the Constitution of the Kingdom of the Netherlands, which was first adopted in 1814. This constitution ensures citizens of The Netherlands will have the freedom to practice the religion of their choice, petition the government, express their thoughts without prior permission, associate, and assemble.  It also grantees citizens the right to privacy, inviolability of his person, and access of information. However, these constitutional rights may not be as freeing as they seem. In a 2008 case, a 45-year-old Dutch man was sentenced to four years in prison for threatening a police officer and publically insulting the queen. The man was under the influence of alcohol when this occurred and had a previous record of violence. He was charged under the rule of Lese Majeste of the Dutch Criminal Code, which forbids threats against the King or Queen in power (The Netherlands Supreme Court). Until November 2012, The Netherlands still had a rule against blasphemy as well. Although the last person convicted of this crime was Gerard Reve in 1966, the law remained in place until 2008. In this case, Gerard Reve wrote a story in which he described his desire to have sex with God who had manifested himself as a donkey. He was charged with blasphemy under Article 147 of the Criminal Code, which states that, anyone who publicly, orally or in writing or depiction, offends religious feelings by scornful blasphemy may be punished with up to three months in jail or fined. Reve was initially convicted of the crime, but upon appeal in 1968 had the charges removed (“Blasphemy Law”). A discussion of the two cases in 2008 spurred the removal of these rules from the Criminal Code. In 2011, The Netherlands tested their free speech laws again when Geert Wilders, a Dutch politician, was charged with inciting hatred and discrimination due to comments he made regarding the Islamic community (Bezhan). These statements were made punishable under Article 137 of the Criminal Code which states, “He who publicly, orally or in writing or image, deliberately insulting a group of people because of their race, religion or belief, their heterosexual or homosexual orientation or their physical, psychological or mental disability, shall be punished with imprisonment not exceeding one year or a fine of the third category” (“Criminal Code of the Kingdom of the Netherlands”). After two trials, Wilders was acquitted of the charges making the case a “victory for freedom of speech”, said Wilders (Bezhan). It was after these cases that the States General decided to move forward with their decision to remove the blasphemy laws from the Criminal Code. “There’s no question that blasphemy laws are a severe restriction on free speech. Any push back against blasphemy laws — [against the notion that ideas] should be protected — is a good thing. It’s very important that blasphemy laws should be repealed,” said Padraig Reidy, news editor at Index on Censorship (Bezhan). There are still laws in place that make it illegal to threaten the police and the queen, and both individuals and groups are protected against hate speech.

Freedom of speech extends to more than just unfavorable words. Article 13.2 of The Netherlands Constitution states, “The privacy of the telephone and telegraph shall not be violated except, in the cases laid down by Act of Parliament, by or with the authorization of those designated for the purpose by Act of Parliament.”  This issue was dealt with in 2009 when a journalist, Jolande van der Graaf, complained about having her phone calls tapped by a computer system (“Netherlands: De Telegraaf Journalists Win Suit”). The government was using this system to listen to the phone conversations of journalists related to a story written about the program in hopes of discovering who leaked the information. The court ordered the government to immediately stop the tapping of the phones, as this was not a legitimate reason to breach the journalists’ privacy (“Security Service Told to Stop Telegraaf Taps”).

In addition to writing and speaking unpopular ideas, artists can also be charged with hate speech. Cartoonist Gregorius Nekschot was arrested in 2008 for artwork he did that represented the Muslim community in a negative light. Fortunately for him, the charges were dropped before he went to trial in 2010 due to his prosecutors being involved in the previously mentioned Wilders case, but this leaves the question open as to whether the Dutch government considers art a form of expression that can be punished by law (“Dutch Cartoonist Arrested for Insulting People”).

Freedom of the Press

While The Netherlands Constitution protects the freedoms of the printing press by granting the right to publish without prior permission, it has a much more restrictive grasp on broadcast media. Established in 1928, the Radio Law required the content produced by broadcasters to serve a cultural/religious purpose Programs that ‘were in bad taste or disturbed the peace’ were prevented from airing (Media Policy for the Digital Age 30). The broadcasting rules were obsolete during World War II when The Netherlands was occupied by Germany. After the war, in 1947, the pre-war rules were restored adding to them a licensing fee introduced by the Nazis. This required anyone who owned a radio to pay an annual fee in order to use his or her device (Media Policy for the Digital Age 30-31). When the television was introduced nine years later, the same rules applied to television broadcasting. In 1967, The Netherlands Broadcasting Law was implemented. This law ensured that only public broadcasters were granted legal access to airwaves. It also opened the public broadcasting system up to any organization that could meet the requirements of a minimum number of ‘members’ and represented a specific group in society (Media Policy for the Digital Age 32). At the time, The Netherlands’ society functioned by ‘pillarization’, which refers to the control of various aspects of society by a few ‘pillars’ or major religious and political groups (Kelly, Mazzoleni, McQuail 145). Due to this, the specific groups, which had to be represented usually, referred to political or religious organizations. Before this law was enacted, commercials were completely forbidden. Under the 1967 law, a governmental group was founded that became responsible for setting up, selling, and regulating blocks of commercial airtime (Media Policy for the Digital Age 32).  This law also caused the formation of the Netherlands Broadcasting Corporation (NOS), which was made up of representatives from broadcasting societies and members appointed by the Netherlands Minister of Culture (Media Policy for the Digital Age 32). During the 1970s, the Prime Minister, Joop den Uyl, published a new media policy in which he aimed to emphasize freedom of expression, democracy, pluralism of the media, and expansion of public participation in society and the media. His policy led to the removal of rules that had outlawed programs that ‘could be a danger to safety on the streets, civil order, and general decency’. Broadcasters still had to prove they represented a specific group with a message that would contribute to the pluralism of society (Media Policy for the Digital Age 33-35). In 1987, a new media law replaced that of 1967. This new law outlined different genres of programs and a schedule that provided balanced airtime (Media Policy for the Digital Age 30). As of 2005, the laws still required those who wanted access to the public broadcasting system to represent a particular sector of society and prove to have at least 300,000 paying members (Media Policy for the Digital Age 39-40). Commercials on the public airtime are restricted. In addition to restrictions on the content of publically broadcasted programs, the Netherlands government also regulates ownership of mediums. The Provisional Act on Media Concentrations enacted in 2007 makes it illegal from publishers and media groups to control more than 35 percent of the newspaper market and no more than 90 percent of the television, radio, and newspaper programs combined (On Media Monitoring). The Media Authority is a group that serves as the watchdog of all broadcasters in relation to financial and content issues. Under this group there are various other monitoring groups to regulate diversity, fairness, and evolution of various mediums (On Media Monitoring). Having such a strong hold over the broadcast media doesn’t mean the print media is under the same scrutiny. In fact, the print media has far more freedoms than the broadcast sector. “The media in the Netherlands are free and independent. Restrictions against insulting the monarch and royal family exist but are rarely enforced” (FreedomHouse.com). A recent incident when these liberties did not hold true was in 2009 when the court ruled “that the Associated Press violated the Dutch royal family’s privacy by distributing photos of them in an Argentina ski resort”. The news agency was ordered to pay 1,000 Euros for each further publication of the photos. Reporters Without Borders was highly upset by this ruling stating, “Presidents and monarchs all of the world who like to take great care of their image will now be able to refer to this decision to justify lawsuits against news media that dare to use photos that have not been cleared by their public relations departments” (“Court Finds AP Guilty”). While The Netherlands may have decreased freedom of the press that time, a more recent event involving journalists’ right to conceal their sources set the standard for worldwide press freedoms. In 2010, the police contacted the magazine Auto Week with intentions of gaining information in relation to photos used in an article about illegal streetcar racing.  The publication refused to hand over information about its sources to police as it claimed they were confidential. The case eventually made it to the Grand Chamber of the European Court of Human Rights, which ruled in favor of the magazine. “This is an important decision that confirms the European Court’s commitment to this benchmark principle of press freedom,” said Arne König, the President of the English Federation of Journalists (“IFJ Welcomes Verdict”).

Critical Comparison

According to the Reporters Without Borders listing of Freedom of the Press issues, the United States is ranked 32nd in the world. A comparison of the issues previously presented might shed some light on the differences between the United States and The Kingdom of the Netherlands. Just as the Netherlands, the United States also has a formal government document outlining the rights of its citizens. The Bill of Rights allocates all of the freedoms listed in the Netherlands constitution with the exception of the access to information and inviolability of his person articles. It seems the United States is still working on how to address this issue as indicated by the case of Gertz v. Welch from 1974, which leaves the issue of defamatory speech to the discretion of the state providing that they do not impose liability without fault. In the episode describing a Dutch man convicted for threatening and insulting the Queen and police, the United States can compare with arresting a man in Alabama recently for posting threatening messages on Twitter about the president of the United States. While the United States does not prohibit threats against the President, it does encourage its citizens to speak freely against their government, and allows for the same freedom of religious opinions as the Netherlands. In both the United States and the Netherlands, it is legal to publish works regarding offensive messages of religious figures. The phone-tapping case can be related to the United States case of Bartnicki v. Vopper, which was a close call, but ended with the United States Supreme Court ruling in favor of a broadcaster that had aired a tape of an unknowingly recorded phone call saying that public interest in the situation was more important than privacy (Lewis 75). In the Netherlands case of the cartoonist that was dismissed instead of resolved, the United States compares with its case of Pennekamp v. Florida. In this case a newspaper cartoonist was prosecuted because his artwork was said to undermine the credibility of the judges it represented. The court ruled in favor of the journalist as he was protected by his rights of free speech and had an obligation to report on issues relevant to society. The Netherlands places numerous restrictions on its broadcast media platforms. In the United States these restrictions are similar. Both the Netherlands and the United States charge a licensing fee for broadcasters of both radio and television programs. The United States does differ however in the regulation of commercials. In the Netherlands, commercials were forbidden for much of history and are now allowed, but are highly regulated. In the United States, commercialization is everywhere. ‘Product placement’ is a term used for commercialization of products within a broadcast program, which takes place frequently in United States, shows, but is illegal in the Netherlands. Both nations share a similar approach to protecting competition and market share of the media. Just as the Netherlands protects against monopolies, the United States has similar laws that extend to all markets. Yet, they differ once again in the watchdog aspect. While the Netherlands uses governmental agencies to protect the diversity, pluralism and financial aspects of media, the United States has citizen run organizations such as the Society of Professional Journalists, the Associated Press, and the Better Business Bureau that serve to protect the rights of journalists. In the United States the press is considered to be the watchdog of the government. The case in which the royal family prosecuted the Associated Press for publishing unwanted photos of their family vacation can be compared to the Jackie Kennedy case, in which she filed a restraining order against paparazzi that was following her too closely (Valdes). The United States has rules prohibiting the paparazzi from intruding in the personal space and personal events of public figures, but not to the extent of the Netherlands’ law. In the United States, the paparazzi are permitted to take and even publish photos of famous individuals, even those photos that might not be flattering. However, when their behavior becomes threatening, such as with Mrs. Kennedy, the law provides for the protection of these individuals’ safety.  The final aspect on which the two nations do not agree is that of the journalist’s right to protect his or her sources. In the United States case of Branzburg v. Hayes in 1972, the United States Supreme Court ruled that requiring journalists to testify and admit their sources did not violate their First Amendment rights. This is displayed again later in 2005 when the president demanded journalists to disclose their sources in a story about his use of international phone tapping. In the United States, journalists seem to have a choice as to whether they want to disclose their sources or not, but this means they might suffer a financial penalty and/or jail time.

The United States and the Kingdom of the Netherlands vary widely in their relation to one other as it pertains to free speech and free press issues. This is due to the differences in the historical context of the two countries as this has had a dramatic effect on the ways in which each country restricts its freedoms. However, the Netherlands highly value freedom of expression and of opinion and both nations seem to be moving towards a more open system. The difference is their cultures and making the appropriate decisions as individual societies to move in the direction that best fit their unique needs.

 

 

Works Cited

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Valdes, Robert, and Cristen Conger. “How Paparazzi Work.” HowStuffWorks.com. HowStuffWorks, n.d. Web. 28 Mar. 2013. <http://entertainment.howstuffworks.com/paparazzi2.htm&gt;.

Flag image is creative commons and was taken from Wikipedia.com.

(This post was last updated on April 30, 2013)

One Response to The Netherlands

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