Case Summary and Outcome

The Criminal Law Section of the District Court Amsterdam (Court of First Instance) convicted 24 defendants for the online harassment of columnist C. Gargard of the Dutch newspaper, NRC. On 17 November 2018, C. Gargard received 7,600 messages after posting a livestream of “Zwarte Piet” (Black Pete) demonstrations in Amstelveen. After investigating around 200 of these messages, the public prosecutor filed charges against 25 suspects. The Court held that 24 defendants were guilty of incitement of assault, murder and manslaughter, discrimination and/or of defamation. The court noted that racial discrimination is unacceptable and that people from all social and cultural backgrounds should be able to enjoy their civil rights and feel safe and accepted in the Netherlands. 

Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.

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Facts

On 17 November 2018, a demonstration against “Zwarte Piet” (Black Pete) took place during the arrival of “Sinterklaas” (a Dutch amalgamation of Saint Nicholas and Santa), in Amstelveen (a municipality in the metropolitan area of Amsterdam). “Sinterklaas” arrives on a steam boat filled with gifts, together with his “helpers”. His “helpers” are traditionally portrayed as a blackface character with large gold earrings, curly wigs and exaggerated red lips. The character is experienced as a vestige of slavery and has been subject to much controversy. C. Gargard, a columnist at the Dutch newspaper, NRC, attended the demonstrations and posted a livestream of the demonstration on her Facebook profile. Thousands of predominantly negative messages were posted below the livestream.  

On 20 November 2018, C. Gargard filed a complaint for receiving “racist, sexist, insulting and threatening messages”. Gargard and her friends collected around 200 of the received reactions on the livestream, which she enclosed with her complaint. The Netherlands Public Prosecution Service subsequently started investigation “13Bitburg”. Under investigation 13Bitburg, the public prosecution service examined the collected messages and tried to establish the identities of the perpetrators. 

As a result of the investigation, the public prosecutor filed charges for community service sentences and/or fines against 25 suspects. The prosecutor argued that the posting of discriminatory, inflammatory and/or insulting messages under the livestream of C. Gargard’s Facebook page breached Articles 131, 137c, 137d and 266 of the Dutch Criminal Code. 

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Decision Overview

Judge President P.L.C.M. Ficq delivered the judgments of the District Court Amsterdam (Criminal Law Section).

Issues before the court

The main issues for the Court’s determination were whether the comments of the 25 suspects amounted to the incitement of a criminal offence, (incitement of) discrimination and/or of defamation, and to determine an appropriate sentence.

Parties’ submissions

In the 25 cases, the prosecutor mainly argued that the statements of the defendants amounted to the incitement of assault, murder and/or manslaughter, (the incitement of) discrimination and/or of defamation. As this “exceeds the permissible scope” of freedom of expression, the prosecutor claimed there was a pressing social need to limit the freedom of expression rights of the defendants. The prosecutor argued that this limitation would be lawful, pursued a legitimate aim and was necessary in a democratic society.

The main submissions of the defendants were that they denied being guilty of inciting assault, murder and/or manslaughter and discrimination. Amongst other things, they argued that: their actions should be understood “in a certain context” [ECLI:NL:RBAMS:2020:5254, para. 5.2];  “there was no intention to incite a criminal offence” [ECLI:NL:RBAMS:2020:5258, para. 5.2]; “the words should not be taken literally”; “the purpose and context of the expression is unclear” [ECLI:NL:RBAMS:2020:5278, para. 5.2], and the message was not so severe as to justify a limitation of the defendant’s freedom of expression rights [ECLI:NL:RBAMS:2020:5258, para. 5.2].

Court’s findings and reasoning

The Court convicted 24 defendants. The Court held that 18 defendants were guilty of inciting assault, murder or manslaughter, breaching Article 131 of the Dutch Criminal Code, which prohibits a person from inciting others to “commit any criminal offence…”. Three defendants were found to have discriminated against C. Gargard and two defendants were found to have incited discrimination, breaching Articles 137c and 137d of the Dutch Criminal Code. The court held that one defendant was guilty of defamation, breaching Article 266 of the Dutch Criminal Code.

To prove incitement to a criminal offence, the Court applied the following standard:

1. The defendant must incite an offence that is criminal under Dutch law;
2. There has to be (conditional) intent;
3. The statement must be public;
4. The statement must be made verbally, in text or via images.

To determine whether the messages amounted to the incitement of discrimination or defamation, the Court applied the following scheme:

1. The comments must be capable of having the effect of incitement of discrimination or defamation;
2. The Court must assess whether the context in which the messages were posted possibly minimize its offensiveness, given the protection of free speech under Article 10(1) of the European Convention on Human Rights (ECHR);
3. If the messages are protected under Article 10 ECHR, the court must determine whether the message is still to be considered “unnecessarily excessive and/or offensive”.

In its reasoning, the Court pointed towards the impact the messages had on C. Gargard and that she felt threatened. Through their comments, multiple defendants “could have brought other people to the idea” of inflicting harm on victim C. Gargard [[ECLI:NL:RBAMS:2020:5281, para. 5.3]. Given the vast amount of messages C. Gargard received, this risk increased.

The Court held that the comments were discriminatory and defamatory, and that some comments incited others to also engage in discrimination. In case ECLI:NL:RBAMS:2020:5295, the Court noted that the comments made were not of any social or public value, but rather merely depicted the frustration of the defendant. The Court stressed that racial discrimination is unacceptable and that people from all social and cultural backgrounds should be able to enjoy their civil rights and feel safe and accepted in the Netherlands.

With regard to the appropriate sentences, the Court pointed out that the public prosecution office service only examined 200 of the 7,600 Facebook messages. Moreover, the 25 cases were jointly brought before the District Court. The cases therefore received more media attention than usual and thus had a bigger impact on the defendants.

Conclusion and damages

To conclude, the Court held that 24 of the 25 suspects were guilty of inciting assault, murder and manslaughter, (the incitement of) discrimination and/or of defamation. The court sentenced the perpetrators to community service of between 28 and 58 hours and/or ordered them to pay fines ranging from 300 to 450 Euros. Moreover, the Court awarded damages to the columnist. 15 perpetrators had to pay C. Gargard damages ranging from 50 to 150 Euros for injuring her honour, reputation or moral integrity.

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