The Netherlands Public Prosecution Service (OM) wants to be tough on tax frauds. Not just by punishing perpetrators, but also by using publicity as an instrument. The OM publishes news reports about transaction proposals, in which people are sometimes called by name and surname. In other cases such specific information is not included, but the information is so detailed, that media easily trace this back to the person the press release concerns. Sigrid Hemels, Professor of Tax Law at Erasmus School of Law, advocates in Financieele Dagblad that the OM should be reserved with using this type of naming and shaming, especially because of the internet’s inability ‘to forget’.
Not a pillory, but human branding
Publishing such messages may have great consequences for an individual. Someone could suffer for a long time from a press release by the OM, because the statement will stay on the internet forever. Hemels: “The comparison with a pillory comes to mind, but, strictly speaking, is not correct. To be put in stocks was painful (literally, because rotten fruit and sometimes even rocks were thrown at the offender), however this was temporary. Being put to shame on the internet is permanent.” The comparison with human branding is more suitable, because a branding does not come off either.”
Privacy violation
Human branding and other corporal punishments were abandoned in 1854, because it was considered uncivilized. Hemels wonders whether a digital branding in the present times is not just as undesirable, but points out this a political question. Whether digital branding is allowed, is a legal question. In a case against the Hungarian tax authorities at the European Court of Human Rights (ECHR), the judges considered the publication of a list with major tax evaders a justified infringement of privacy. However, two out of the seven ECHR-judges were against these kind of publications. To them, this list is some sort of a modern pillory.
Once a fraud, always a fraud
Hemels agrees with the two judges: “No matter how much I agree on the importance of preventing, tackling and punishing free-riding behaviour, I struggle with the reintroduction of a permanent branding. Modern Penal Law is based on the principle of being offered a new start or a second chance. A publication on the internet complicates that and creates the risk that someone who once was a fraud, will always be seen as a fraud. We should be really careful with that.”
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Read the entire column in het Financieele Dagblad here (Dutch).