How far does a mayor’s power extend to prohibit a resident from making a certain statement on the internet? That is the question that the administrative court in Utrecht is currently considering. It is the first lawsuit about the online expression ban. This is a legal means with which an increasing number of mayors try to prevent public order disturbances. This prohibits agitators from making online calls for riots, for example.
People who incite riots, as happened during the early 2021 curfew riots, are usually punished through criminal law. The punishment is subsequently imposed by a judge. Through the online ban on expressions, mayors think they can also punish someone in advance through administrative law, without a court test.
According to experts, the online expression ban jeopardizes the right to demonstrate.
Demonstration right under pressure?
Signals about sedition can be shared by the police with the municipality. A mayor then has an idea of who the suspected agitator is and imposes a penalty on that person. If someone does not remove the call to riot from the internet, this person will receive a fine from the municipality, for example 2,500 euros per day that the comment remains.
At least three municipalities have already implemented the measure. The municipality of Utrecht at the end of 2021 with a 17-year-old boy from Zeist, after he shared an online pamphlet calling for an uprising. “Be there, bring your mates & fireworks”.
Mayor Dijksma of Utrecht determined that the boy must pay 2,500 euros per day that he is in violation. “You must refrain from online statements (on social media) that can be qualified as giving rise to disorder due to challenging behavior. This includes in any case calling for or sharing calls for meetings in Utrecht that intended to disturb public order.” The boy in question is now challenging the measure in the administrative court.
“My first thought was: this measure is legally unacceptable in several respects,” says his lawyer Jan van der Grinten. “It is a restriction of freedom of expression, but the mayor is not authorized to do that. The mayor is not allowed to limit fundamental rights on the basis of a municipal regulation.”
Experts also believe that the mayor is playing with fire. “It’s fairly simple: mayors should not be concerned with the content of expressions. That is a form of censorship. They should be concerned with disturbances and the prevention thereof, but in the physical area,” says Professor of Constitutional and Administrative Law Jon Painter.
According to the experts, mayors form an opinion about a certain statement with the measure. When a mayor believes that something is sedition, he already expresses an opinion about that statement. Schilder: “The fact that this is not allowed has to do with constitutional relationships: ministers and mayors should not end up on the slippery slope in which they will assess whether or not something is acceptable as an expression. That is up to the judiciary and the court.”
Experts compare the ‘online ban on expression’ – which is also referred to as ‘online area ban’ by municipalities – with the ‘his ban’ that was included in the General Local Regulation (APV) in Rotterdam a few years ago. Intended to combat street harassment against women. Among other things, a man would say to passing women “Hey, pretty ladies. Where are you going?” have called. The case went to the court, which ruled that the ban violates freedom of expression, enshrined in the Constitution.
Mayor Jos Wienen of Haarlem also imposed a form of online expression ban. He thinks he should have that right. “Imagine that you could say anything and do anything, because we do have freedom. Then it will be chaos. There are also limits to that freedom. You cannot just appeal to the freedom of expression of ‘I’m going to organize riots now’.”
His fellow mayor in Almelo has not yet imposed the measure, but has recently amended his General Local Regulation (APV) with municipal rules. Demonstrations got out of hand. With the adjustment of the APV, mayor Arjen Gerritsen says he will be able to ban online expressions from now on. “In the days surrounding that demonstration, social media called for people to come to Almelo, where it was also very clearly known that they were out for disturbances. It would have helped if those calls on the internet had not been there.”
Mayors are experimenting themselves, because national legislation on preventive intervention in inflammatory texts is currently lacking. A national guideline that municipalities could use via social media monitoring was supposed to be ready last year, but has been delayed.
Justice Minister Dilan Yesilgöz has previously pointed to the possibilities for mayors to intervene themselves through local ordinances. But experts expect that the judge will blow the whistle on the mayor of Utrecht.
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