How offensive can you be? PROF. MR YBO BURUMA SUPREME COURT; FACULTY OF LAW, RADBOUD UNIVERSITYNOVEMBER, 6TH 2015

The Supreme Court of the Netherlands

Uncivilized manners A long tradition of uncivilized (rude) behaviour The influx of refugees: harsh and offensive words v. fear of other behaviour Freedom of expression – European Convention of Human Rights Crimes: Offensive, threatening or discriminating speech

Article 10 European Convention Human Rights 1.Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. (…) 2.The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Freedom of expression … also applicable for words “that offend, shock or disturb the State or any sector of the population”. (ECrtHR Handyside) Limitations are permitted – by law – and might be justified – if necessary. difficult balance between rights and interests of each individual honor, fear, anger about unequal treatment pressing social need: encouraging violence

Criminal law Offensive speech: simple insult, slander, libel (including pictures), false accusations Insulting the King; foreign heads of state; insulting officials (police) Insulting groups (race, religion, sexual preference, physical or mental handicaps) Threats: Simple threats regarding individuals, blackmail, stalking Inciting hatred or discrimination of groups Inciting violence against the authorities Blasphemy: no longer punishable Hindering or disturbing a religious meeting

Political cases An old issue Between : 19 prosecutions for lese majesty Freedom of expression versus criminality Opinion Leaders: the Wilders case and inciting jihad Clear political expressions ‘Stop Islam’ case versus Auschwitzcartoon case Insulting officials: no ‘right to indignation’

Ordinary citizens Harm done Reputation, cyberbullying No harm done An abusive tradion Emotive speech: is it ‘freedom of expression’? Rational beings; usefulness; the political importance of emotion Moral emotions Harm/care & fairness/cheating but also loyalty, authority, sanctity/purity Could and should offensive speech be punished? “Hey baby”