Repression is really something different than prevention

In the Netherlands the mayor is responsible for maintaining public order. However, local rules do not provide them the authority to curtail the freedom of expression as prevention, online or otherwise.

In 2021, a 17-year-old boy in the Netherlands was arrested for inciting of riots. The boy had called for people to come to Utrecht with fireworks as a protest against the corona policy and the fireworks ban. The boy received a so-called “online area ban” from the municipality, even though the mayor does not have a legal basis for such an order. He was no longer allowed to make statements online that could lead to disorder in the city. Other cities, such as Amsterdam, issued similar orders.

Incitement is already punishable

In the lowlands, and undoubtedly in many other European countries, it is already punishable to incite to riot. If you do so, you risk having to answer to a judge. The maximum penalty for sedition is five years in prison and a hefty fine. However, it does take months for the judge to hand down his sentence.

In the meantime, the mayor, responsible for maintaining public order, thinks: by then the damage would have already been done. He would rather want you to remove your incitement immediately to preventing further spread,and prohibit you from making new incitements. Because “[it] could lead to disorder in the city,” as the Utrecht mayor put it when issuing an ‘online area injunction’.

Drinking coffee is not a punishable act

It is problematic that the mayor, not a judge, can suddenly determine what you can or cannot say. You might think “a call to riot is a call to riot”. But there is a vast gray area, with many nuances and relevant context.

In the Netherlands, everyone knows that the call to “have a cup of coffee” means the call to demonstrate against government policy on COVID-19. Let’s face it: “let’s drink coffee in the market square” is not a call for violence. But does it change your opinion if the call is “let’s drink coffee in the market square demonstratively”?

Or does your opinion change if you know that the call was made by someone who also organised a protest a week before that ended in rioting? And what if previous demonstrations ended in riots, but unlike then, this time it is you who sends out the call?

Other rights under pressure

It is good to realise that this is not just about our freedom of speech. Our right to demonstrate is also under pressure. If you are no longer sure you can call to “drink coffee demonstratively”, you may no longer feel free enough to organise another demonstration. The mayor is responsible for facilitating demonstrations. But what if you have doubts whether he will actually do so. You might not take to the streets anymore when angry about something.

Unfortunately, the threat to the freedom of speech and demonstration are not the only problematic things about online bans.

Citizens as guinea pigs

The mayor of Amsterdam knows full well that she has no good legal basis for such a ban. That is why she is letting it come down to a test case in court. She wants the judge to rule on her measure. But this is a fundamental issue. In the Netherlands, we have never determined that the mayor has any say on expressions made online. It’s the legislation that should rule on this issue and not the judge.

For example, unless the defense argues so, the judge will not weigh that such power by mayors to repress online expression also introduces an incentive for social media monitoring by mayors. We have a democratic process to make those trade-offs properly, where the cabinet makes a proposal and parliament can critically reflect on it. And that is also not a done deal, because the Minister of Justice and Security, for example, might not want to legislate for it.

In this case, the mayor of Amsterdam is turning citizens into a guinea pig. The mayor wants to create case law over the backs of her residents or, even more vehemently, force the minister to create new legislation, whereas the minister does not want that at all. That does not fit in the relationship between government and citizens. The government must act predictably. Doing it the other way round does absolutely nothing to improve citizen confidence in government and the way citizens view our rule of law, or our society as a whole.

Deep social distrust

And then there is another thing that is distressing about the determination to act by mayors. They complain that the criminal justice system works too slowly. They want preventive action tagainst riots. But the anger and violence obviously runs much deeper than that one inflammatory post. Violent drill raps are nothing more than a catalyst for incidents of violence. The cause of those incidents lies in the underlying violent street culture. If you want to prevent that, you have to invest in community centers, youth services, mental health services and other facilities. Things that have been cut back enormously in recent years.

A deep distrust in government is the underlying problem. If the government wants to solve that, it must regain the trust of its citizens. And taking repressive measures that are legally questionable cannot be a good base for that restoration of trust.

This article was first published by Bits of Freedom.
The translation of the article was provided by Martin van Veen

Contribution by: Rejo Zenger, Policy Advisor, EDRi member, Bits of Freedom