Photoshopping a Nazi flag; insult or freedom of speech?

On 26 September 2022, Pepijn van Houwelingen, a member of parliament for the party Forum voor Democratie, caused a stir on Twitter by editing a flag into a Nazi flag on a picture of Minister Ernst Kuipers and Minister Karien van Gennip. The ministers described the action as “a new low in the treatment of administrators and politicians”. Other members of parliament also expressed their disapproval regarding the tweet. The freedom of speech of parliamentarians fulfils a crucial role in our democratic rule of law. However, insult and freedom of speech are sometimes very closely related. Joost Nan, Professor of Criminal (Procedural) Law, explains what constitutes an insult and when something falls under the freedom of speech of members of parliament.

The Dutch Penal Code states that any deliberate insult that does not constitute libel is punishable as an insult. Distributing images with insulting content can also be qualified as an insult. “Roughly, one speaks of a (simple) insult in case of an utterance in word and/or gesture with the intention of offending another person’s honour and reputation. This is generally the case if the utterance contains words that are insulting themselves, but the context can also make an utterance insulting”, Nan explains.

Parliamentary immunity

The situation is slightly different for parliamentarians. They enjoy parliamentary immunity as long as they speak in the parliamentary assembly, even if the remarks are offensive. Outside the assembly, it is slightly more complex. Nan explains: “Outside the assembly, parliamentarians have the freedom to participate in public debate. However, they must pay attention to what they say. Parliamentarians’ words may carry more weight in society.

Nan states that for insulting utterances, also by members of parliament, “the punishable character can be omitted if the utterance contributed to the public debate. However, one may be critical, sharp and harmful. Nevertheless, if an utterance is unnecessarily offensive, it can still constitute insult”. Therefore, members of parliament enjoy greater freedom of expression than citizens, which is vital for them to express their values and stand up for the interests of their voters.

Limits to freedom

If Van Houwelingen’s tweet is considered an insult by a criminal court, another punitive element also applies. Nan stresses: “Insulting a public servant, which ministers are, carries a slightly higher penalty than insulting a citizen. A minister is more protected by criminal law in this respect”. The maximum penalty for insulting a public servant is a third higher than for a simple insult.

On whether Van Houwelingen’s tweet could face a criminal trial, Nan considers the following: “In my opinion, the link made with Nazism by having the ministers raise a Nazi flag seems to affect their dignity. I can understand that they [red. Kuipers and Van Gennip] feel offended by it. A crude joke or robust social discussion should certainly remain possible in our parliamentary democracy, and one should be able to take a punch. But you can also go too far in expressing your opinion. Such an association with a Nazi symbol seems unnecessary and polarizing to me as a member of parliament, even if it does not constitute a criminal insult”.

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