Back to Index of Limits on Freedom of Expression

Freedom of expression in the Netherlands is protected by article 7 of the Dutch Constitution and article 10 of the European Convention on Human Rights (ECHR). The scope of protection generally covers every type of expression from any individual, group, or type of media, notwithstanding its content, with the exception of expressions that negate the fundamental values of the ECHR or hate speech. Limitations of freedom of expression in the ECHR must be prescribed by law, be necessary in a democratic society, and be for one of the enumerated legitimate aims. Freedom of expression in the Dutch Constitution can only be limited by a formal law or regulation. In the context of heckling, relevant limitations in the Dutch Criminal Code are defamation, slander, and insult; lèse-majesté; and the prohibition against incitement to religious hatred and discrimination (“hate speech”).

The Dutch Media Act 2008 contains quotas for European and Dutch-Frisian programming of public and private broadcasters, thereby excluding or limiting the participation of foreign, non-European Union broadcasters. Under the ECHR, states are free to regulate broadcasting with a licensing system, but they may not impose any restriction on the means of reception.

I. Overview of Freedom of Expression

Freedom of expression in the Netherlands is protected by article 7 of the Dutch Constitution (Grondwet) and article 10 of the European Convention on Human Rights (ECHR).[1] The Netherlands follows the doctrine of monism, meaning that rights contained in international treaties like the ECHR are automatically incorporated into national law without the need for a domestic implementing law and can be invoked by everyone.[2] All the case law of the European Court of Human Rights (ECtHR) on a certain article of the ECHR must be taken into account by the Dutch judges when they apply the respective ECHR provision (incorporation theory), not only from cases that involved the Netherlands.[3] It should also be noted that international law norms that are binding on everyone prevail over constitutional provisions and statutes.[4] Freedom of expression is among those rights.[5] Lastly, the legislature interprets the Constitution as the courts are prohibited from reviewing the constitutionality of acts of Parliament and treaties.[6] Some authors have pointed out that, due to that system, referring to the fundamental rights codified in the Dutch Constitution has become obsolete, and that it makes more sense to refer to the rights codified in the ECHR.[7]

Article 7 of the Dutch Constitution states that

1. No one shall require prior permission to publish thoughts or opinions through the press, without prejudice to the responsibility of every person under the law.
2. Rules concerning radio and television shall be laid down by Act of Parliament. There shall be no prior supervision of the content of a radio or television broadcast.
3. No one shall be required to submit thoughts or opinions for prior approval in order to disseminate them by means other than those mentioned in the preceding paragraphs, without prejudice to the responsibility of every person under the law. The holding of performances open to persons younger than sixteen years of age may be regulated by Act of Parliament in order to protect good morals.
4. The preceding paragraphs do not apply to commercial advertising.

Article 10 of the ECHR reads

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

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II. Scope of Protection

A. ECHR

Freedom of expression protects natural and legal persons.[8] It encompasses the freedom to hold opinions, the freedom to receive information and ideas, and the freedom to impart information and ideas. In general, every type of expression from any individual, group, or type of media is included in the scope of protection, notwithstanding its content. The ECtHR has stated that the protection of article 10 is “applicable not only to ’information‘ or ’ideas‘ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ’democratic society’.”[9] However, if an expression negates the fundamental values of the ECHR, such as a denial of the Holocaust or hate speech, it is excluded from the scope of protection.[10]

B. Dutch Constitution

The Dutch Constitution divides freedom of expression into several categories: freedom of the press, freedom of the media, and freedom of expression by other means. Freedom of expression by other means includes, among others, speeches, theater, music, film, video, CD and CD-ROM, and expressions or communication via the internet.[11]

Dutch courts in their description of the scope of freedom of expression oftentimes use language similar or identical to the language used by the ECtHR. In a recent widely-reported case against the politician Geert Wilders for statements on race that were found to be hate speech, the Hague Court of First Instance in its preliminary remarks stated that “freedom of expression is one of the foundations of our democratic society . . . [which] is characterized by pluralism, tolerance and open-mindedness and therefore requires that there is room for the dissemination of information, ideas and views that shock, hurt or disturb the State or a large part of the population. However, restrictions may be imposed on the exercise of this freedom, including to protect the rights and freedoms of others.”[12] It further held that “even a democratically elected representative such as the defendant is not above the law . . . [a]nd for him too, freedom of expression is limited. When . . . he makes statements that go beyond that boundary, in the sense that his behavior constitutes a criminal offense . . . These are statements that have not been protected by freedom of expression from the outset.”[13] Like the ECtHR, the Dutch courts generally exclude hate speech from the scope of protection of freedom of expression. The decision in the Wilders case has been appealed by the defendant.[14] A ruling is expected in October 2019.[15]

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III. Limits on Freedom of Expression

A. Dutch Constitution

The Dutch Constitution does not contain a general limitations clause; instead, every right sets out whether and how it can be limited, either by an act of parliament or pursuant to an act of parliament (delegated authority) and occasionally just for specific purposes, such as public safety or protection of morals. Freedom of expression in the Dutch Constitution can only be limited by an act of parliament (“without prejudice to the responsibility of every person under the law”). The Dutch Constitution varies the level of protection and possibilities to limit the different components of freedom of expression. Whereas the prohibition of censure for freedom of the press is absolute (paragraph 1), performances open to persons younger than sixteen years of age that fall under freedom of expression by other means can be regulated by act of Parliament in order to protect good morals (paragraph 3). The Dutch Criminal Code contains several provisions that limit freedom of expression and are relevant in the context of heckling, among them defamation, slander, and insult;[16] lèse-majesté;[17] and the prohibition against incitement to religious hatred and discrimination (“hate speech”).[18]

B. ECHR

Article 10 of the ECHR provides that any limitation of freedom of expression must be prescribed by law. Furthermore, the interference must be “necessary in a democratic society” and be aimed at certain enumerated objectives.[19]” The legitimate aims are “interests of national security, territorial integrity or public safety, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or rights of others, the prevention of the disclosure of information received in confidence, or the maintenance of the authority and impartiality of the judiciary.” The term “law,” however, is much broader than in the Dutch Constitution and must not be a formal act of parliament; instead, it can refer to any rule of law that is accessible and foreseeable.[20]

Relevant in the context of heckling is the prevention of disorder or crime. The ECtHR has held, however, that “ill feelings or even outrage, in the absence of intimidation, cannot represent a pressing social need [for limiting freedom of expression] . . . To hold otherwise would mean that freedom of speech and opinion is subjected to the heckler’s veto.”[21]

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IV. Availability of Mechanism to Control Foreign Broadcasters Working on Behalf of Foreign Governments

As mentioned, article 7, paragraph 2 of the Dutch Constitution provides that there is no prior censure of broadcasting and that the freedom of broadcasting may only be limited by an act of parliament. In 2008, the Dutch parliament passed the Media Act 2008 (Mediawet 2008), which sets out rules for public and commercial broadcasters, short-term broadcasters, and commercial on-demand media service providers.[22] The Media Act 2008 replaced the outdated Media Act from 1987.[23] The Dutch Media Authority (Commissariaat voor de Media) supervises the media service providers; for example, it grants broadcasting licenses, monitors compliance with the rules of the Media Act 2008, and imposes penalties for non-compliance.[24] However, the Media Act also states that the government does not interfere with the form and content of the programming of the public and private broadcasters.[25]

There are, however, rules in the Media Act 2008 that limit the participation of foreign broadcasters to a certain extent. The Media Act 2008 contains quotas for European and Dutch-Frisian programming of public and private broadcasters, thereby excluding foreign, non-European Union (EU) broadcasters. Fifty percent of the programming of public media corporations must consist of European works as defined in the EU Audiovisual Media Services Directive.[26] Another 50% must consist of Dutch-Frisian programming.[27] For private broadcasters, there is also a requirement that 50% of the programming consist of European works; however, the Dutch Media Authority can lower that percentage to 10% in special cases.[28] With regard to Dutch-Frisian programming, the Media Act 2008 requires a 40% quota, but the Dutch Media Authority may partially or fully exempt a private broadcaster from that requirement in special cases.[29]  Special cases may include broadcasters that are focused on a specific group of people, for example foreigners.[30]

Under the ECHR, as mentioned above, freedom of expression also covers the freedom to receive information.  States are free to regulate broadcasting with a licensing system, but they may only exercise that power for technical purposes.[31] The ECtHR has held that “any restriction imposed on the means [of reception] necessarily interferes with the right to receive and impart information.”[32]

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Prepared by Jenny Gesley*
Foreign Law Specialist
June 2019

*At present there are no Law Library of Congress research staff members versed in Dutch. This report of the law of the Netherlands has been prepared by the author’s reliance on practiced legal research methods and on the basis of relevant legal resources, chiefly in English, currently available in the Law Library and online.

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Last Updated: 12/30/2020