The Freedom of Expression in the Constitution of the Netherlands: An Overview
by Konstantinos G. Margaritis*
Freedom of expression has been characterized as a cornerstone of the democratic society. Freedom of expression is essential in enabling democracy to work and public participation in decision-making. Citizens cannot take part in public decision-making effectively if they do not have the chance to develop and express their views freely and therefore convince others. Freedom of expression is thus not only important for individual dignity but also to participation, accountability and democracy. Violations of freedom of expression often go hand in hand with other violations, especially against political rights and freedoms. The purpose of this essay is to briefly analyze the concept of freedom of expression as instituted in the constitution of one of Europe’s most liberalized countries, the Netherlands.
The freedom of expression is laid down in Article 7 of the Dutch Constitution. Paragraph 1 states that “no one shall require permission to publish thoughts or opinions through the press, without prejudice to the responsibility of every person under the law.” From the way that paragraph 1 is formulated, it is clear that the provision is focused on the protection of expression through the press. The freedom of press was always protected in the Netherlands and was first included in the Constitution of 1815.
It can be said that freedom of expression entails three basic rights: the right to form an opinion, the right to hold an opinion and the right to express/propagate an opinion.
It is commonsense that the first step in order for an opinion to be expressed is to be formed. The State has the obligation not to use the public media for promoting or dissembling specific ideas or hiding facts. In addition, all institutions that are under the supervision of the State (public schools, public libraries, universities) shall promote objectivity in order not to influence the formulation of a specific opinion within society. The purpose of this specific right is to prevent power abuse on behalf of the State in the form of controlling opinions through brainwashing. This part of freedom of expression is related to Article 110 of the Dutch Constitution which protects the right of access to information.
The second right entailed in the freedom of expression is the right to hold an opinion. Nobody shall be bothered for his or her opinions. In that sense the Constitution forbids special treatment because of different opinions and even more, negative consequences because of different opinions are strictly prohibited. This is in line with the general principle of equality of Article 1 of the Constitution.
The third right is the right to express/propagate an opinion. This is what is literally protected in Article 7. Usually, people’s will does not end in simply expressing a specific opinion; their aim is to convince as many as they can. Especially in the field of academia or politics, convincing is a crucial factor for success. That particular social activity is also protected. Usually the expression of opinion contains propagation. In practice, the most common way to spread an opinion is through the press.
The first paragraph essentially refers to the freedom of publishing opinions or thoughts through the press. The concept of the press is sometimes hard to define. Generally, the expression of an opinion through the press can be achieved with the publication of a written opinion in a book, in a newspaper or a magazine, normally any form that can be produced in several copies. In one opinion, the meaning of the press in paragraph 1 should be broadly interpreted in the sense that it also covers signs and billboards. At that point, a distinction must be made between the signs that are used just for the expression of an opinion and the signs that are used for advertising purposes. The last falls under the scope of the fourth paragraph of Article 7 of the Dutch Constitution.
Paragraph 2 can be characterized as lex specialis in relation to paragraph 1; it refers to the most important means of press, the radio and television. In particular, it dictates that “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.” Hence, the Parliament sets the rules for the most popular media by adopting an Act based on the constitutional obligation of no previous supervision of the content of a radio or TV program.
Paragraph 3 of Article 7 of the Dutch Constitution states that “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.” It is a constitutional provision of a more general nature that was added after the amendment of 1983 to fill the gap. Up to that point, a provision that simply protects freedom of expression was absent from the Dutch Constitution; it only existed as expression through the press. Paragraph 3 contains the word “means” without any further explanation except from the one of the press. Thus, it implies the traditional oral and writing methods. The fact that this provision was added later is demonstrated by its formulation, in particular the phrase “other than those mentioned in the preceding paragraphs.”
The written expression of opinion includes all forms of written communication from text in a paper to an e-mail or an SMS on the cellphone. Of course, different systems of written communications, such as the Braille system, are also included.
Both the first and third paragraphs refer to the freedom of expression without any prerequisites. Paragraph 1 includes the phrase “prior permission” for the publication of thoughts or opinions. Following the Constitution literally, that means that the press is totally free from any previous permission from any public authorities and plus, in addition, no restrictive measures can be taken a priori for a publication. Finally, it also implies that censorship of any type is totally banned. In paragraph 3, a different term is used for the same concept that leads to the same result; the term “prior approval.” Since paragraph 3 was added later and it is formulated in a more modern way, a less strict wording was chosen. Taking into consideration that nowadays the most effective method to disseminate an opinion is through the press, this specific example of the general freedom of expression shall be protected in a more strict way.
Both paragraph 1 and 3 mention “no one shall require,” which clarifies that every person has access to the freedom of expression, not only the citizens of the Kingdom of the Netherlands. Those two paragraphs also contain the limits of the freedom of expression; they both mention the responsibility of every person under the law. The law must be established by the competent institution (Act of Parliament) in accordance with the formal and parliamentary procedures. Therefore, a decision of a local authority is not in a position to restrict freedom of expression.
Paragraph 3 sets another limit by stating that “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.” The protection of the development of good morals prevails over the freedom of expression when it comes to the underaged until the age of sixteen. It is commonsense that the youth could be influenced more easily and affected psychologically, maybe even permanently. Good morals have a more ethical dimension; they reflect the perception of society concerning a series of issues that affect social behavior. In that sense, the notion of good morals is quite vague; it can be interpreted at will. For example, shows of pornographic content should not be watched by people under sixteen. Again for the application of that limit, an Act of Parliament is needed.
Commercials are exempted from the application of freedom of expression. As stated in paragraph 4, “the preceding paragraphs do not apply to commercial advertising.” In that sense, advertising is not considered a means of expression in the context of Article 7. In fact, the purpose of advertisements is not the dissemination of opinions, which are essentially protected in Article 7, but the promotion of a specific product or service for profit. That approach differentiates advertising from means of expression under the concept of Article 7.
In a challenging world, it seems that freedom of expression is sufficiently protected in the Constitution of the Netherlands. Nevertheless, structural changes would clarify more the concept of Article 7; the third paragraph should be first (general freedom of expression), while the first could be second (freedom of press) and the second could be third (special rules on TV and radio).
*Konstantinos G. Margaritis, LLM, Dr. iur. candidate, Attorney at Law.